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PETITIONER: RAGHUNATH PRADHANI

       Vs.

RESPONDENT: DAMODRA MAHAPATRA AND ORS.

DATE OF JUDGMENT02/11/1978

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1978 AIR 1820            1979 SCR  (2) 196

ACT:      Orissa Scheduled  Areas Transfer  of Immovable Property by Scheduled  Tribes Regulation  2 of  1956 and  Rule 4 made thereunder  Validiiy   of  Court  attachment  without  prior permission- Res  judicata doctrine  of applicability whether non raising a particular contention operate as-Second Appeal and Appeal  under Art.  136 of  the Constitution-No new plea can be allowed to be raised.

HEADNOTE:      On the  strength  of  the  permission  granted  by  the Revenue Divisional  Officer, as  required under  clause 6 of the Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes  Regulation 3  of  1956  and  Rule  4  made thereunder, to  sell his private property to a non-scheduled Tribe person  for a sum of Rs. 4000/-, Respondent 3 sold his property on  January 2, 1964 by a registered deed of sale to the appellant,  despite an  attachment order  passed by  the Executing Court  on July  13, 1963  on an  application dated June 28,  1963 made  by Respondent 1 to recover the decretal amount as per the money decree obtained by him on August 18, 1962 against  Respondent 3  and  his  mother  Respondent  4. Later, Respondent  No. 1  however, produced  the copy of the order passed  by the  R.D.O.. dated October 23, 1963, at the instance of  appellant in  the Executing  Court and  got the property put  to sale  on May 15, 1964. In the court auction respondent 2  son of respondent 1 purchased the property. On June 22,  1964, the  appellant filed  an  application  under order 21  Rules 89  and 90 and Section 47 and 151 C.P.C. for setting aside  the auction  sale  on  the  ground  that  the attachment and  the auction  sale  were  void  for  want  of permission  from   the  competent   authority  under  Orissa Regulation 2  of 1956 and also due to fraud committed by the decree holder.  The  application  was  allowed  followed  by confirmation by the appellate judge, in appeal. But the High Court in  Second Appeal reversed it accepting the contention of res judicata.      Allowing the appeal by special leave, the Court. ^      HELD: 1.  Both clauses 6 of the "Orissa Scheduled Areas Transfer  of   Immovable  Property   by   Scheduled   Tribes Regulation 2  of 1956,  and Rule  4 made thereunder, provide

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that no  immovable property  belonging to  a member  of  the scheduled Tribe  is liable  to be attached or sold except in accordance with  the permission  granted  by  the  competent authority. Prior  to the  sale to  the  private  party,  the property was  undoubtedly attached  in execution proceedings on July  13, 1963,  but the  order of  attachment was  void, being contrary to the express inhibition contained in clause 6 of  Regulation 2 of 1956 read with Rule 4 made thereunder. [200E-G]      2. The auction sale is bad and invalid:      It is  elementary that what can be brought to sale in a Court sale  is the right, title and interest of the judgment debtor and  therefore, the auction purchaser can get nothing more than  that right,  title and  interest. In  the instant case, the  appellant having  become an owner of the property on account of the 197 Private sale  dated January  2, 1964  respondent  3  had  no saleable interest left in the property which could be put to auction. The  auction sale  therefore  cannot  displace  the title of  the appellant  which is  the same  thing as saying that as between the title of the appellant and the so called title of  the auction  purchaser the  appellant’s title must prevail. [200G-H, 201A]      Moreover, as  the  condition  imposed  by  the  R.D.O.. regarding the  price was  violated by  the auction sale, the auction purchaser  cannot get  a valid title to the property under  that   sale.  In  the  private  sale,  the  appellant purchased the  property for  Rs. 4,000/-  and therefore  the condition of  the permission  was  complied  with.  But  the auction sale  was held  in satisfaction of the decretal dues which were far less than Rs. 4,000/- the decree itself being in the sum of Rs. 1,000/- and odd and the highest bid at the auction being of Rs. 3,000/- only.[201 B-C]      3. (a)  The basic  issue being  the validity of auction sale in  favour of respondent 2, no question of res judicata can arise.  the appellant claims through the judgment-debtor and neither  the latter  nor the decree-holder ever disputed that he,  the judgment-debtor, was a member of the Scheduled Tribe. On  the other hand both of them were conscious of the situation that  the property  could not  be sold without the sanction  of   the  R.D.O.,  Nowrangpur.  The  decree-holder himself apprised  The Executing  Court of that position. The permission which  was granted  by the  R.D.O., Nowrangpur at the instance  of the  appellant was produced by respondent 1 in the  execution  proceedings  as  if  the  permission  was granted in  sis favour  for the  sale by respondent 3 of his property. The  failure, therefore, of the judgment-debtor to raise  any  particular  contention  cannot  operate  as  res judicata actually  or constructively,  either against him or against the appellant. [201 D-F]      (b) Whether "Bhotras" fall within any of the sub groups of the  Scheduled  Tribes  enumerated  in  Part  IX  of  the Schedule to  the Constitution (Scheduled Tribes) Order, 1950 is a  question which  could not  have been  permitted to  be raised for  the first  time in  the Second Appeal. Much less can it  be allowed  to be  raised in this Court in an appeal under Art. 136 of the Constitution.[200C-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 453 of 1969.      (From the  Judgment and  order  dated  12-9-68  of  the

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Orissa High Court in Misc. Appeal No. 208 of 1966).      Sardar Bahadur  Saharya and  Vishnu Bahadur Saharya for the appellant.      Nemo for the respondent.      The Judgment of the Court was delivered by .      CHANDRACHUD, C.J.  Respondent 1 obtained a money decree on August  18, 1962  against respondent  3  and  his  mother respondent 4.  On  June  28,  1963  respondent  1  filed  an execution petition  for recovering  the decretal  amount and prayed therein  for attachment  of  the  Immovable  property belonging to  respondent 3.  The property was attached by an order passed  by the  Executing Court  on July  13, 1963. On November 27,  1963 respondent  1 filed an application in the Executing 198 Court praying  that permission  be obtained  of the  Revenue Divisional officer for sale of the property since respondent 3 to  whom  the  property  belonged  was  a  member  of  the Scheduled Tribe.  The permission was considered necessary by reason of  the provisions  contained  in  Clause  6  of  the ""Orissa Scheduled  Areas Transfer  of Immovable Property by Scheduled Tribes Regulation No. 2 of 1966". It provides:           In execution of money decree against a member of a      Scheduled Tribe  no right title or interest held by him      in any  immovable property  within any  scheduled  area      shall be  liable to  be attached and sold except as and      if prescribed.      Rule 4 made under the aforesaid Regulation provides:           There shall  be no attachment or sale of immovable      property in  execution of  a  money  decree  against  a      member of  a Scheduled  Tribe within any scheduled area      without  the  writ  ten  permission  of  the  competent      authority. The  property at  such a  sale shall be sold      only to  a member of a Scheduled Tribe unless otherwise      specifically  directed  in  writing  by  the  competent      authority. The  Revenue   Divisional  officer,   Nowrangpur,  was   the competent authority for the present purpose.      Respondent 3  who was  in the  meantime negotiating for the  private    sale  of  the  property  moved  the  R.D.O., Nowrangpur on  June 18,  1963 for  permission  to  sell  the property to  a non-Scheduled  Tribe person.  He obtained the requisite permission  by an order dated October 23, 1963 for the sale of the property for Rs. 4,000/-. On the strength of the aforesaid  permission respondent  3 sold the property to the appellant  on January  2, 1964  by a  registered deed of sale.      A copy  of the  order passed by the R.D.O. was produced by respondent  1 in the Executing Court whereupon on May IS, 1964 the  property was put to sale. Respondent 2, who is the son of  respondent 1  purchased the  property in the auction sale.      On June  22, 1964  the appellant  filed an  application under order  21 Rules  89 and  90 and Sections 47 and 151 of the Code  of Civil  Procedure praying  that the auction sale should be  set aside  on the  ground that the attachment and the auction  sale were void since they were effected without obtaining the  permission of  the competent  authority under Orissa Regulation  No. 2 of 1956. The appellant also alleged that the  decree-holder had  played a  fraud on the Court by inducing it  23, 1963  which was  passed  by  the  competent authority at  the instance  23, 1963 which was passed by the competent authority at the instance of the appellant. 199      Respondent 2  resisted the  appellant’s application  on

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the ground  that he  was a  bona fide  purchaser in  a court sale, that  the aforesaid  sale was held after the competent authority  had  granted  permission  for  the  sale  of  the property and  that therefore  his title  to the property was not liable to be displaced at the instance of the appellant.      The learned  District Munsif  who dealt with the matter accepted the  contention of  the appellant and set aside the auction sale.  In Civil  Miscellaneous Appeal  No. 9 of 1965 filed by  respondent 1,  the Appellate  Judge confirmed  the order of the District Munsif and dismissed the appeal.      Respondent l  then filed  a second appeal in the Orissa High Court,  being Miscellaneous  Appeal No.  208  of  1966. Before the  High Court  respondent 1  raised two contentions only viz.,  (1) that  the judgment-debtor, respondent 3, was not a  member of  the  Scheduled  Tribe  and  therefore  the attachment and  the court  sale were  not void; and (2) that the judgment-debtors, having failed to take objection to the attachment on  the ground  that they belonged to a Scheduled Tribe, were  debarred from  objecting to  the  sale  of  the property on the principle of constructive res judicata.      The High  Court rejected  the first  contention relying mainly on  the circumstance  that respondent  1, the  decree holder, had  accepted the  position that  respondent 3 whose property was being put to sale was a member of the Scheduled Tribe. The High Court however accepted the second contention on the  ground that  neither respondent  3 nor the appellant had taken  any objection  in the  execution proceedings that since the  former had  no saleable  interest in the property the auction  sale could  not be  held or that the permission given by  the, R.D.O.  did not  authorise  the  sale.  Being apprieved by  the judgment of the High Court dated September 12, 1968, the, private purchaser from the decree  holder has filed this appeal.      We are  in agreement  with the  view of  the High Court that it  is not  open to respondent 1, the decree-holder, to contend that  respondent 3 whose property was put to sale in the execution  proceedings was not a member of the Scheduled Tribe. Respondent  1 filed  his execution  petition for  the purpose of  recovering the  decretal dues  by attachment and sale of  the property  belonging  to  one  of  the  judgment debtors,  respondent  3.  Respondent  1  himself  asked  the Executing Court  to secure  the permission  of the competent authority for  sale of  the  property  on  the  ground  that respondent 3  whose property  was to be put to sale belonged to the  Scheduled Tribe.  The permission  from the competent authority was  later obtained  by the  appellant, with  whom respondent 3  was negotiating  for a  private  sale  of  his property. The 200 permission which  was granted  by the  R.D.O., Nowrangpur at the instance  of the  appellant was produced by respondent I in the  execution  proceedings  as  if  the  permission  was granted in  his favour  for the  sale by respondent 3 of his property. Respondent  1 cannot  then be permitted to dispute that respondent  3 did  not belong  lo a Scheduled Tribe and therefore the  permission of the competent authority was not needed to validate the sale.      The contention  that respondent  3 did  not belong to a Scheduled Tribe was founded solely on the consideration that he belonged  to the  Bhotra tribe  which  is  not  expressly mentioned as  on of  the Scheduled Tribes in the schedule to the Constitution  (Scheduled Tribes),  order 1950. It may be assumed that  respondent 3  is a  Bhotra. But paragraph 2 of the Scheduled  Tribes order,  1950 provides  to  the  extent material that  the Tribes, or parts of, or groups within the

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Tribes specified  in the Schedule to the order shall also be deemed to  be Scheduled  Tribes. Whether Bhotras fall within any of  the sub-groups or the Scheduled Tribes enumerated in Part IX  of the  Schedule to  the 1950  order is  a question which could  not have  been permitted  to be  raised for the first time in the second appeal. Much less can it be allowed to be  raised before us. This appeal, like the second appeal before the  High Court, must therefore be disposed of on the basis that respondent 3 is a member of the Scheduled Tribe.      Upon that  footing, the  appellant must succeed because after the  R.D.O., Nowrangpur granted permission to sell the property on  October 23, 1963, the property was purchased by the appellant from respondent 3 on January 2, 1964. Prior to that sale the property was undoubtedly attached in execution proceedings on July 13, 1963 but the order of attachment was void, being  contrary to the express inhibition contained in Clause 6  of Regulation  No. 2 of 1956 read with Rule 4 made thereunder. Both  Clause  6  and  Rule  4  provide  that  no immovable property  belonging to  a member  of the Scheduled Tribe is  liable to be attached or sold except in accordance with the  Permission granted  by  the  competent  authority. Under the  registered sale, Ext. 4, executed by respondent 3 in favour of the appellant, the title to the property vested in the  appellant. The  appellant having  become an owner of the property  on account  of  the  aforesaid  private  sale, respondent 3  had no  saleable interest left in the property which could  be put  to sale  in the  court auction.  It  is elementary that  what can be brought to sale in a court sale is the  right, title and interest of the judgment-debtor and therefore, the  auction purchaser  can get nothing more than that right,  title and  interest.  The  judgment-debtor  not having any  saleable interest  in the property at all on the date of  the auction sale, there was nothing that respondent 2 could get in the auction sale which was 201 held in  execution of  the  money  decree  obtained  by  his father, respondent  1. The  auction  sale  therefore  cannot displace the  title of the appellant which is the same thing as saying that as between the title of the appellant and the so called  title of  the auction  purchaser, the appellant’s title must  prevail. It must follow that the auction sale is bad and must be set aside.      There is  an additional  reason why the auction sale is not  valid   By  the   permission  granted  by  the  R.D.O., Nowrangpur on October 23, 1963 for sale of the property, one of the  conditions imposed  on the  judgment-debtor was that the property  shall be  sold for a sum of Rs 4,000/-. In the private sale,  the appellant  purchased the property for Rs. 4,000/- and  therefore the  condition of  the permission was complied with. But the auction sale was held in satisfaction of the  decretal dues  which were far less than Rs. 4,000/-, the decree  itself being in the sum of Rs. 1,000 odd and the highest bid at the auction being of Rs. 3,000/- only. As the condition imposed  by the  R.D.O. regarding  the  price  was violated by  the auction  sale, the auction purchaser cannot get a valid title to the property under that sale.      In this  view, no  question of  res judicata  can arise because the  basic issue  ill the  appeal is  as regards the validity of  the auction sale in favour of respondent 2. The appellant claims through the judgment-debtor and neither the latter nor  the decree-holder  ever disputed  that  he,  the judgment-debtor, was a member of the Scheduled Tribe. On the other hand both of them were conscious of the situation that the property  could not  be sold without the sanction of the R.D.O., Nowrangpur.  The decree-holder himself, apprised the

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Executing Court of that position. The failure, there, of the judgment-debtor to  raise any  particular contention  cannot operate as  res judicata, actually or constructively, either against him or against the appellant.      For these  reasons we  allow the  appeal, set aside the judgment of  the High  Court and confirm that of the learned Subordinate Judge,  Koraput, setting aside the court sale in favour of respondent 2. There will be no order as to costs. S.R.                                         Appeal allowed. 14-8l7SCI/78 202