LexRAGHUNATI PRADHANI versus DAMODRA MAHAPATRA AND ORS.
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196
A
RAGHUNATIIPRADHANI
v.
DAMODRA MAHAPATRA AND ORS.
November 2, 1978
B
(Y. V. CHANDRACHUD, C.J., P. S. KAILASAM AND A. D. KOSHAL, JJ.j
c
Orissa Scheduled Areas Tran.rfer of Im1novable Property by Scheduled Tribes
Regulation 2 of 1956 and Rule 4 mode thereunder-Validity of Court attachment
without prior permission-Res judicata doctrine of applicability, whether nort
raising a particular contention operate as-Second Appeal and Appeal under Art.
136 of the Constitution-No ne>v plea can be allowed to be raised.
On the strength of the permission granted by the' Revenue Divisional Officer,
as required under clause 6 of the Orissa Scheduled Areas Transfer of In1movable
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.
40001-, 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
D
Court on July 13, 1963 on an application dated June 28, 1963 made by Respon-
dent l 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, prcxluccd 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. Jn the court auction respondent
2 son of respondent 1 purchased the property. On June 22, 1964, the appellant
E
filed an application under Order 21 Rules 89 and 90 llnd Sections 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.
F
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H
Allowing the appeal by special leave, the Court.
HELD : 1. Both clauses 6 of the "Orissa Scheduled A.reas Transfer of
Immovable Property by Scheduled Tribes Regulation 2 of 1956, and Rule 4 made
thereunder, provide that no immovable properiy belonging to a nJember of the
scheduled Tribe is lible 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 Ln July
13, 1963, but the order of attachment was void, being contrary to the express
inhibition oontained 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 pur-
chaser 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-
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RAGIHUNATH v. DAMODRA (Chandrachud, C.J.)
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
<lisplace the title of the appellant which is the san1e 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.0. regarding the price was
violated by the auction sale, the auction pur:haser cannot get a valid title to the
property under that sale. In the private sale, the appellt1.nt
purchased
the
'Pfoperty for Rs. 4,000/- and therefore the condition of the permission was com-
plied 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.
{201B-CJ
3. (a) Tile basic issue being the validity of auction sale in favour of res-
pondent 2, no question of res j11dicata 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
()ther hand both oExcerpt shown. Read the full judgment & AI analysis in Lexace.