1. This is an appeal by the plaintiffs against the judgment and decree dated 27.01.2012 passed by the Additional District Judge Khurja, District Bulandshahar in Civil Appeal No. 200 of 2009 arising out of Original Suit No. 194 of 1984, which was instituted for declaring the auction sale dated 18.5.2004 of Plot No.308 (hereinafter referred to as plot in dispute), area 2 Bighas, 16 Biswas, 7 Biswansis, situated in village Bhaiyyapur, Pargana Pahasu, District Bulandshahar, pursuant to the decree obtained by defendant No.1, as illegal.
2. The undisputed facts of the case are that the land in dispute was of defendant no.2. The defendant no.1 had instituted O.S. No.143 of 1978 against defendants 2 & 3 for recovery of money wherein, before judgment, the plot in dispute was attached, on 17.3.1978. This suit was decreed ex parte on 18.11.1978. Neither an appeal nor an application to set aside the ex parte decree was preferred by the judgment-debtors and, as such, the ex parte decree became final in between the parties. The decree was put to execution vide execution case no.60 of 1979. On 18.5.1984 the auction proceedings were conducted and the defendant no.1 was found to be the highest bidder. In the meantime, the plaintiff-appellants vide sale deed dated 10.6.1983 purchased the plot in dispute from the judgment-debtor of O.S. No.143 of 1978. On the strength of this sale deed, the plaintiff-appellants have instituted O.S. No.194 of 1984 for declaration that the auction sale of the land in suit was illegal.
3. O.S. No.194 of 1984 was instituted by the plaintiff-appellants averring that they were bona fide purchaser of the plot in dispute and that the defendant no.2 was a small farmer whereas the defendant no.1 (the plaintiff of O.S. No.143 of 1978) was a money lender, accordingly, the O.S. No.143 of 1978 was barred by the provisions of U.P. Regulation of Money-Lending Act, 1976 as also the U.P. Debt Relief Act, 1977. Consequently, the Court had no jurisdiction to entertain and decree the Suit No.143 of 1978 and, as such, the decree, its execution, the auction sale and all subsequent proceedings are null and void.
4. Defendant No.1 contested the suit thereby denying that the plaintiffs were bona fide purchaser. It was claimed that the sale-deed dated 10.06.1983 in favour of the plaintiffs was void under Section 64 of the Civil Procedure Code. It was further claimed that the objection of the plaintiffs under Section 47 C.P.C was rejected on 23.08.1986 and the auction sale in favour of the defendant no.1 was confirmed; and that the civil Court had complete jurisdiction to entertain and decree the Original Suit No. 143 of 1978 and to execute the decree and that the suit was not barred.
5. Trial Court framed various issues. It found that the plaintiffs were not bona fide purchaser for value inasmuch as they belonged to the neighbouring village and it could not be believed that they were not aware that the property had been attached. It also found that the sale deed in favour of the plaintiff was executed pending attachment hence was void under section 64 CPC and, as such, the plaintiffs had no right to the suit property, therefore, the suit for declaration at the instance of the plaintiffs was not maintainable being barred by sections 34 and 41(j) of the Specific Relief Act. It further found that the attachment of the property was not illegal or barred by the provisions of the UP Debt Relief Act inasmuch as the Defendant Nos.2 and 3 together had land in excess of the threshold provided under the said Act, which disentitled them from claiming the benefit of the said Act. It further observed that the ex parte decree was not challenged either under Order 9 Rule 13 CPC or in an appeal, and it was also not challenged in a suit, accordingly, the same had become final between the parties and the plaintiffs claiming under a void sale deed had no right to seek for declaration that the auction sale was illegal. It further found that the executing court had confirmed the auction. It also held the suit to be barred by the provisions of Order 21 Rule 89 CPC. Trial Court, however, held that the suit was not barred by section 47 CPC.
6. Aggrieved by the judgment and decree of the trial court, the plaintiff-appellants went up in appeal which was dismissed and the judgment and decree passed by the trial court was affirmed. While affirming the judgment and decree of the trial court, the appellate court found the suit to be barred by section 47 CPC. Challenging the judgment and decree of the courts below the present second appeal has been filed.
7. I have heard Sri Nishant Mehrotra, learned counsel for the plaintiff-appellants and Sri Ateeq Ahmed Khan learned counsel for the defendant respondent no.1/1 and have perused the relevant record available on affidavits filed by the appellants.
8. Sri Nishant Mehrotra, learned counsel for the plaintiff-appellants, submitted that the original suit No. 143 of 1978 was barred by the provisions of U.P. Regulation of Money Lending Act, 1976, as also by the provisions of U.P. Debt Relief Act, 1977, therefore, any order of attachment passed in the said suit was without jurisdiction and, as such, a nullity. Thus, the sale-deed was not hit by section 64 of the Civil Procedure Code and, as such, the suit at the instance of the plaintiffs was maintainable and the view to the contrary taken by the courts below was illegal. In addition to the aforesaid submission, it was claimed that any attachment before judgment in Original Suit No. 143 of 1978 came to an end when the suit was decreed and there being no evidence of any subsequent attachment in the execution proceedings, the sale-deed in favour of the plaintiffs could not be said to be void under Section 64 of the Civil Procedure Code.
9. Sri Nishant Mehrotra, learned counsel for the appellants, further contended that there was no dispute that the defendant no.1 was a money lender, as would be evident from the reply to paragraph no.2 of the plaint. He submitted that there was also no denial to the averment made in para no.3 of the plaint that the defendant no.2, whose land was attached and sold, was a "small farmer". He thus contended that in absence of any evidence that the plaintiff of O.S. No.143 of 1978 held a valid certificate of registration under the provisions of the UP Regulation of Money-Lending Act, 1976 or had made declarations about the debts due to him, it was proved on record that the original suit no.143 of 1978 was barred by the provisions of U.P. Regulation of Money Lending Act, 1976, as also by the U.P. Debt Relief Act, 1977. In support of his contention Sri Mehrotra placed reliance on the following decisions:
(a) AIR 1997 Allahabad 201: Kamta Prasad v. IInd Additional District Judge Mainpuri & others;
(b) 1978 AWC 835: Ram Jiwan v. Sri Niwas;
(c) (1974) 2 SCC 624: N. Krishnaih Setty v. Gopalakrishna & others;
(d) 2008 (1) AWC 276: Smt. Vidyawati v. Lala Ram.
10. Relying on the decision in the cases of Kamta Prasad (supra) and Ram Jiwan (supra), Sri Nishant Mehrotra contended that as there was no material on record that the decree holder of Original Suit No.143 of 1978 had got himself registered and had notified the debts due to him, as provided by the provisions of U.P. Regulation of Money-Lending Act, 1976, not only the suit was barred, but the decree also could not have been executed, by virtue of the provisions of section 18 read with section 26(4) of the Act. He thus contended that the auction-sale pursuant to the execution of the decree, in favour of the defendant no.1, was void. Relying on paragraphs 11 and 15 of the judgment in Smt. Vidyawati's case (supra) it was contended that the plaintiffs were neither party to the O.S. No.143 of 1978 nor the representatives of the judgment-debtor and, as such, they could not have filed objection under section 47 CPC or make deposit under Order 21 Rule 89 CPC, therefore, the suit was not barred either by the provisions of section 47 CPC or by the provisions of Order 21 Rule 92(3) CPC. Reliance was placed on the decision of the apex court in the case of N. Krishnaih Setty (supra) so as to contend that if the suit was not maintainable and was barred by the provisions of UP Regulation of Money-Lending Act, 1976, as also by the provisions of UP Debt Relief Act, 1977, the attachment before judgment was invalid and, as such, the subsequent auction sale was void.
11. Sri Mehrotra submitted that both the courts below have not carefully examined the matter by taking into account the true effect of the provisions of the UP Regulation of Money-Lending Act, 1976, as also the UP Debt Relief Act, 1977, on the validity of the attachment before judgment in O.S. No.143 of 1978, therefore, the judgment of the courts below are liable to be set aside.
12. Per contra, Sri Ateeq Ahmad Khan, learned counsel for the respondent No.1/1, submitted that O.S. No.143 of 1978 was a simple money recovery suit on the basis of a pro-note and a receipt, which admittedly proceeded ex parte and was also decreed ex parte. In the said suit the defendants, during the proceedings of the suit, never raised any plea to the effect that the suit was barred either by the provisions of U.P. Regulation of Money Lending Act, 1976 or by the provisions of UP Debt Relief Act, 1977. It was further submitted that the bar under the provisions of UP Regulation of Money-Lending Act, 1976 has to be pleaded and proved so as to oust the jurisdiction of the civil court. Likewise, he submitted, the provisions of U.P. Debt Relief Act, 1977 would enure to the benefit of a "small farmer" provided the necessary conditions so as to disclose that a person is a "small farmer" are pleaded and proved. He, accordingly, submitted that the decree, as also the order of attachment, passed in Original Suit No. 143 of 1978, cannot be said to be void or without jurisdiction. It was further submitted that the civil court's jurisdiction was not completely ousted by the provisions of UP Regulation of Money-Lending Act, 1976 as also by the UP Debt Relief Act. The bar under the provisions of these Acts are dependent upon existence of certain conditions which have to be pleaded and proved in defence before the court where the suit is instituted. In absence of any such plea, in Original Suit No.143 of 1978, the civil court had jurisdiction to pass an order and, in such a situation, the proceedings, or order or decree, passed in the said suit would not be a nullity. Accordingly, the attachment would have its usual effect thereby rendering the sale deed, in favour of the plaintiff-appellants, void under Section 64 of the Civil Procedure Code. He further contended that since the sale-deed in favour of the plaintiff-appellants was admittedly made pending attachment, it was void and, therefore, the courts below were justified in holding that the suit at the instance of the plaintiffs was not maintainable as they, on the date of the institution of the suit, had no right to the land in dispute. As regards the contention of the counsel for the plaintiff-appellants that on the passing of decree in Original Suit No. 143 of 1978 the order of attachment stood discharged, the learned counsel for the respondent drew attention of the Court to the provisions of Order 38 Rule 11 CPC which provides that where the property is attached before judgment, it shall not be necessary upon an applicant, who files an application for execution of such decree, to apply for reattachment of the property.
13. Having considered the rival submissions, firstly, it has to be seen whether the plaintiff-appellants derived any right or title under the sale deed dated 10.6.1983 so as to have locus to maintain O.S. No.194 of 1984. In this regard, Section 64 of the Code of Civil Procedure provides that a private sale of an attached property is void as against all claims enforceable under the attachment. This position has also been recognized by the Apex Court in several of its decisions i.e. C.S. Mani v. B. Chinnasamy Naidu-2010 (9) SCC 513; Nancy John Lyndon v. Prabhati Lal Chaudhari- 1987 (4) SCC 78. In this case, there is no dispute that the land in dispute was attached before judgment in O.S. No.143 of 1978, which was ultimately decreed. There is also nothing on record to show that by any order of the Court, at any stage, the attachment was lifted. What the appellants' counsel has submitted is that consequent to the final decision of the suit, the attachment stood automatically lifted and as there was no further order of attachment, the sale deed in favour of the appellants would not be hit by section 64 CPC. This submission of the counsel for the appellants is in the teeth of the provisions of Order 38 Rules 11 and 11-A (1) CPC. Order 38 Rule 11 CPC is being reproduced herein below:-
"11. Property attached before judgment not to be re-attached in execution of decree.--- Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall, not be necessary upon an application for execution of such decree to apply for a re-attachment of the property."
Sub Rule (1) of Rule 11-A, inserted by CPC (Amendment) Act 104 of 1976 w.e.f. 1.2.1977, further clarifies the operation of its preceding Rule 11. Sub-Rule (1) of Rule 11-A of Order 38 is being reproduced below:
"11-A -(1)- The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of Rule 11."
From the perusal of the aforesaid provisions, I'm of the view that the attachment of the land in dispute did not cease on the decree of the Original Suit No.143 of 1978. Further, there was no need to seek for a fresh attachment of the land at the stage of execution of the decree. This view also finds support from a decision of this court in the case of Damodar Das v. Gurcharan Kapoor- AIR 1984 Alld. 398, wherein reliance was placed on an earlier decision of a Full Bench of this court (AIR 1953 Alld. 173-Abdul Hamid & others v. Mst. Asghari Begum), as also from a judgment of the Orissa High Court in the case of Ramachandra Gochhikar & others V. Ramachandra Biswal & others- AIR 1970 Orissa 164.
14. Original Suit No.194 of 1984 was instituted by the plaintiff-appellants for declaration that the auction sale of the land in dispute, held on 18.5.1984, pursuant to the decree in O.S. No.143 of 1978, is illegal. Entitlement to seek for declaration is dependent on certain conditions as are provided in section 34 of the Specific Relief Act, 1963, which reads as follows:-
"34. Discretion of court as to declaration of status or right.--- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask further relief.
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--- A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."
15. A perusal of section 34 of the Specific Relief Act, 1963 contemplates the following conditions:-
(i) that the plaintiff is entitled- (a) to any legal character; or (b) to any right as to any property; and
(ii) that the defendant is a person who denied or is interested to deny his title to such character or right.
If these conditions are satisfied, the plaintiff need not ask for any further relief than a mere declaration but the court shall not make any such declaration if he, being able to seek further relief than a mere declaration of title, omits to do so.
16. As the sale-deed dated 10.06.1983, on the basis of which the plaintiff-appellants claim title, is void under Section 64 of the Code of Civil Procedure, the plaintiffs, on the date of the institution of the suit, had no right to the property so as to enable them to seek for declaration that the auction sale in favour of the defendant No.1, pursuant to the execution of the decree passed in Original Suit No. 143 of 1978, was illegal.
17. The learned counsel for the appellants being aware of the aforesaid limitation in the plaintiffs' case, submitted that the O.S. No.143 of 1978 itself was barred by the provisions of the U.P. Regulation of Money-Lending Act, 1976 as also by the provisions of the U.P. Debt Relief Act, 1977, accordingly, the entire proceeding in the suit was without jurisdiction and a nullity, therefore, the order of attachment being an outcome of such proceedings would in itself be void and, as such, there was no necessity to even seek for cancellation of the decree or for its declaration as void. It was claimed that in the aforesaid scenario the sale deed in favour of the plaintiffs was valid and it would not be void under section 64 CPC.
18. In view of the aforesaid submission of the learned counsel for the appellant, the question that emerges for consideration in this appeal is: whether the entire proceeding including the order of attachment as well as the decree in O.S. No.143 of 1978 was null and void and, as such, could be ignored by the Court without any requirement to get it annulled?
19. Before ascertaining whether the entire proceeding in O.S. No.143 of 1978 was null and void or not, it would be useful to examine the law as to when a decree can be said to be null and void so as to enable the Court to ignore the same in collateral proceeding. In this regard the apex court in the case of Balvant N. Viswamitra V. Yadav Sadashiv Mule (2004) 8 SCC 706, in paragraph no.9, observed as follows: "The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings." In paragraph 15 of the report, the apex court further observed: "From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings."
20. In the case of Rafique Bibi (D) by LRs V. Sayed waliuddin (D) by LRs AIR 2003 SC 3789, the apex court, in paragraph no.6 of the report, observed as follows: "What is 'void' has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such nullity based on want of jurisdiction; else the normal rule that an executing Court cannot go behind the decree must prevail." Further, in paragraph 8 of the report, it observed: "A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings." While holding as above, the apex court noticed with approval the observations made by it in the case of Vasudev Dhanjibhai Modi V. Rajabhai Abdul Rehman & others (1970) 1 SCC 670, which are as follows: "When the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears to be on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
21. In Ittavira Mathai V. Varkey Varkey (1964) 1 SCR 495: AIR 1964 SC 907, the apex court observed: "If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is settled that a court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do........If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity." This view was again reiterated by the apex court in the case of Bhawarlal Bhandari V. Universal Heavy Mechanical Lifting Enterprises (1999) 1 SCC 558.
22. From the law as noticed above, a decree could be said to be null and void only when the decree is made by a Court which has no inherent jurisdiction to make it. The inherent lack of jurisdiction must appear on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, then neither the executing Court nor any other Court in collateral proceedings would have jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.
23. In the instant case the plaintiff-appellants have not sought for annulment of the decree or proceedings in O.S. No.143 of 1978. What the plaintiffs pray is to set aside the auction sale held in execution of the decree. The contention of the plaintiffs is that the court that passed the decree had lacked jurisdiction to do so as the suit was barred by the provisions of the UP Regulation of Money-Lending Act, 1976 as well as the UP Debt Relief Act, 1977. Accordingly, it has to be examined whether by virtue of the provisions of the aforesaid Acts, the Court, that entertained and decreed the suit No.143 of 1978, completely lacked jurisdiction to do so.
24. The bar as envisaged by the U.P. Regulation of Money Lending Act, 1976 is contained in Section 18 and 26 of the Act, which are being reproduced below:-
"18. Bar on certain suits by money-lenders:- No suit on the basis of any loan, agreement or security referred to in sub-section (1) of Section 15 shall be instituted by a money-lender, unless at the time of advancing such loan or making such agreement or taking such security----
(a) such money-lender held a valid certificate of registration; or
(b) such money-lender had applied for such certificate and the same had not been refused; or
(c) the period specified in the proviso to sub-section (1) of Section 7 had not expired.
26. Particulars of debts and deposits to be furnished by every money-lender.- (1) Every money-lender carrying on the business of money-lending from before the commencement of this act shall submit to the Registrar, a statement in the prescribed form within a period of three months from the date of such commencement.
Provided that the Registrar may on an application by such money-lender, for sufficient cause condone the delay and accept the statement submitted within three months from the date of the commencement of the Uttar Pradesh Regulation of Money-Lending (Amendment Act), 1978.
(2) The statement referred to in sub-section (1) shall contain the particulars of debts due to each money-lender and of deposits made with him and such other particulars as may be prescribed.
(3) Every such statement shall be counter-signed, dated and sealed by the Registrar and shall be kept and maintained in the manner prescribed.
(4) Notwithstanding anything contained in any contract, decree or order or any other law for the time being in force, no money-lender shall be entitled to claim any amount from a debtor in respect of any loan advanced before the commencement of this Act, unless the name of such debtor and the amount due from him has been specified in the statement referred to in sub-section (1)."
25. A perusal of section 18 of the U.P. Regulation of Money Lending Act, 1976 goes to show that the suit by a money-lender is not completely barred. Section 18 provides that no suit on the basis of any loan, agreement or security referred to in sub-section (1) of Section 15 shall be instituted by a money-lender, unless at the time of advancing such loan or making such agreement or taking such security--- (a) such money-lender held a valid certificate of registration; or (b) such money-lender had applied for such certificate and the same had not been refused; or (c) the period specified in the proviso to sub-section (1) of Section 7 had not expired. In the instant case the suit no.143 of 1978 was for recovery of money on the strength of a pro-note and a reciept. There is nothing in the UP Regulation of Money-Lending Act, 1976, which bars a suit for recovery of money. Thus, there was no inherent lack of jurisdiction in a civil court to entertain and decree the suit for recovery of money. No doubt, the defendants in O.S. No.143 of 1978 could have set up in defence that the plaintiff was a money-lender and, as such, the suit was barred for non-compliance of the various provisions of the Act. For setting up this plea it was incumbent upon the defendants in O.S. No.143 of 1978 to disclose that the plaintiff was carrying the business of money-lending. It has been held by this court in the case of Babban Mani Tiwari v. Ram Barans 1979 ALJ NOC 75 that in a suit to recover the amount advanced on the basis of a pro-note the burden of proof that the plaintiff is a money-lender carrying on the business of money- lending is on the defendant claiming benefit of the Act. In absence of any such plea before the Court dealing with the O.S. No.143 of 1978, it cannot be said that there was inherent lack of jurisdiction in the said Court either to attach the property before judgment or to decree the suit. Accordingly, I'm of the view that the order of the Court passed in O.S. No.143 of 1978 directing attachment of the land in dispute before judgment as well as the decree passed therein was not null and void. Thus, neither the decree nor the order of attachment passed in O.S. No.143 of 1978 could be ignored as null and void on the strength of the provisions of the UP Regulation of Money-Lending Act, 1976.
26. So far as the provisions of the UP Debt Relief Act, 1977 is concerned, the bar, as envisaged, to entertain a suit, is contained in section 22 thereof, which reads as follows:-
"22. Bar to certain suits--- Notwithstanding anything contained in any law for the time being in force----
(a) no civil or revenue court shall entertain a suit, application or proceeding against a small farmer in respect of any debt to which the provisions of this Chapter apply;
(b) every such suit, application or proceeding pending before any such court on the date of commencement of this Act shall abate;
(c) no decree of a civil court in relation to the debt to which the provisions of this Chapter apply shall be executed."
27. A bare perusal of section 22 of the U.P. Debt Relief Act, 1977 goes to show that the person who seeks benefit of the bar must be a "small farmer" in respect of any debt to which the provisions of the concerned Chapter applies. Thus, for seeking the benefit of section 22 of the U.P. Debt Relief Act, 1977, it has to be first pleaded and proved that the person concerned is a "small farmer". Section 2 (11) of the U.P. Debt Relief Act, 1977 defines "small farmer", as follows:-
"2. Definitions.----In this Act--
(11) "small farmer" means a person residing in a village who, on the date of commencement of this Act, holds unirrigated land exceeding one hectare but not exceeding two hectares, and whose principle source of livelihood is income from agricultural land or by manual labour on such land and includes a person cultivating land as an asami or as a share-cropper."
Thus, a person could be said to be a "small farmer" if all of the following conditions are satisfied:-
(a) He resides in a village;
(b) On the date of commencement of this Act, holds unirrigated land exceeding one hectare but not exceeding two hectares;
(c) Whose principle source of livelihood is income from agricultural land or by manual labour on such land.
28. Accordingly, to set up a defence that the suit is barred by section 22 of the UP Debt Relief Act, 1977, the defendant has to plead and prove the various ingredients that are contemplated by the said section. In absence of any such plea there would be no inherent lack of jurisdiction in a civil court to entertain and decree the suit. Thus, I'm of the view that neither the decree nor the order of attachment passed in O.S. No.143 of 1978 could be ignored as null and void on the strength of the provisions of the UP Debt Relief Act, 1977.
29. In view of the discussion herein above I am of the view that the order of attachment passed in Original Suit No. 143 of 1978 cannot be said to be a nullity inasmuch as there was no inherent lack of jurisdiction in the civil court to entertain and decree the suit, particularly when the bar was neither pleaded nor proved before it. Accordingly, since the plaintiffs claim title through a sale deed executed pending attachment, they do not derive any right, title or interest by virtue of section 64 CPC. Hence the suit at their instance is not maintainable inasmuch as by virtue of section 34 of the Specific Relief Act, 1963 a person, who seeks for declaration, must have an entitlement to any right as to any property. The authorities that have been relied upon by the plaintiff-appellants are, therefore, not in aid of the plaintiff-appellants. It may be mentioned that in the case of N. Krishnaih Setty v. Gopalakishna & others (supra), which has been cited by the learned counsel for the appellants, the suit was instituted by sons for declaration that the sale deed in execution of the decree obtained by the defendant in a suit against their father and other members of their family was void. In paragraph 3 of the said judgment, as published in the report, the apex court observed, as follows: "....The plaintiffs got a right to the property as soon as they were born, not by way of succession but by right of birth. Therefore, plaintiffs were certainly entitled to file a suit questioning the sale." Likewise in the case of Kamta Prasad (supra) the bar, as envisaged by the UP Regulation of Money-Lending Act, 1976, was raised and set up by the judgment debtor in proceedings under section 47 CPC. Similarly, in the case of Ram Jiwan (supra) it was the defendant, in the suit, who had challenged the decree, in Revision, by setting up the bar, as envisaged by the UP Regulation of Money-Lending Act, 1976. Thus, the judgments relied by the learned counsel for the appellants would not rescue the suit of the plaintiff-appellants, who had no right to the property as the sale deed in their favour was void under section 64 CPC. Accordingly, I have no hesitation to uphold the finding of the courts below that the suit at the instance of the plaintiff-appellants was not maintainable.
30. Another submission was made by the learned counsel for the plaintiff-appellants, which was to the effect that the auction sale in favour of the defendant No.1 was illegal inasmuch as he was himself the decree-holder; and that no permission was obtained by him from the Court to purchase the property. This submission finds no basis in the pleadings of the parties and it was never raised before the courts below. As this submission is not a pure question of law, as to answer the same it has to be ascertained whether permission was obtained or not, the appellants cannot be permitted to raise this plea at the stage of second appeal particularly in absence of any such plea in the plaint. Even otherwise, once I've held that the suit at the instance of the plaintiff-appellants was not maintainable, decision, either way, on this plea has no relevance.
31. For the reasons aforesaid, I do not find any infirmity in the judgment and decree of the courts below. The appeal lacks merit and is, accordingly, dismissed under Order 41 Rule 11 CPC.
Order Date :- 02.07.2012 Sunil Kr Tiwari