Case: Raghunath Pradhani Vs. Damodra Mahapatra And Ors

the, private purchaser from the decre e holder has filed this appeal. 6. 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 mem ber 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 as ked 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 aut hority was later obtained by the appellant, with whom respondent 3 was negotiating for a private sale of his property. The 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 ex pressly 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 mate rial that the Tribes, or parts of, or groups within the 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. 7. 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 proper ty 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 conta ined 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 int erest 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 not hing that respondent 2 could get in the auction sale which was 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 say ing that as between the title of the appellant and the so called title of the auction purchaser, the appellants 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 its elf 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 pr operty under that sale. 8. 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 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. 9.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 mem ber 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 as ked 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 aut hority was later obtained by the appellant, with whom respondent 3 was negotiating for a private sale of his property. The 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 ex pressly 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 mate rial that the Tribes, or parts of, or groups within the 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 TribeUpon that footing, the appellant must succeed because after the R.D.O., Nowrangpur granted permission to sell the property on October 23, 1963, the proper ty 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 conta ined 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 int erest 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 not hing that respondent 2 could get in the auction sale which was 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 say ing that as between the title of the appellant and the so called title of the auction purchaser, the appellants 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 its elf 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 pr operty under that saleIn 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 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.