JUDGMENT K.N. Srivastava, J.
1. This is an execution second appeal filed by Syed Iqbal Husain.
2. The predecessor of the decree-holder-respondents had advanced some money to Ch. Afzal Husain. After his death, a suit for recovery of the amount was filed against the heirs of Ch. Afzal Husain including Syed Iqbal Husain. The suit was decreed. In execution, of that decree, certain Bhumidhari plots were put to sale and were auctioned. Iqbal Husain had filed an objection against the sale under Order 21, Rule 90, C.P.C. which was rejected. He then filed the objection that the property sold belonged to him personally and was not the asset of Ch. Afzal Husain and, as such, was not liable to be sold in execution of the decree. It should be noted here that the decree passed was against the asset of Ch. Afzal Husain in the hands of this judgment-debtor.
3. The objection of the Judgment-debtor was dismissed by the executing court. Being dissatisfied, the judgment-debtor filed an appeal. The appeal was also dismissed. Hence this second appeal.
4. There is no dispute that Ch. Afzal Husain had made a Waqf of his Zamindari property. The plots in suit were the Sir land appurtenant to that Zamindari. After the creation of the waqf, its character had ceased but in the revenue papers it continued to be recorded as Sir land. After the enforcement of the Zamindari Abolition and Land Reforms Act, it was recorded as Bhumidhari ol Iqbal Husain. According to the decree-holders these plots were the assets of Ch, Afzal Husain in the hands of the judgment-debtor and, as such, the plots were rightly auctioned in execution of the decree.
5. There is nothing on the record to show that Ch. Afzal Husain, after creating the waqf, claimed exproprietary tenancy right in these plots. The plots continued to be recorded as sir of Ch. Afzal Husain even after the execution of the waqf deed. This revenue entry was obviously wrong. After the Zamindari was transferred, the sir plots could have become the exproprietary tenancy of Ch. Afzal Husain and if it was in the tenancy of a tenant, it could become the tenancy of the tenant. There was no tenant over these plots. There was no other co-snarer in the Khewat which was subject-matter of the waqf. Therefore, the only consequence which could have followed after the creation of the waqf was to claim ex-proprietary tenancy right in these plots. Certainly no such right was claimed. All the same, these plots remained in possession of Ch. Afzal Husain although the entries in the revenue papers were continuously wrongly made that the land was sir of Ch. Afzal Husain.
6. Now the question arises as to how Iqbal Husain became the Bhumidhar of the disputed plots. There is no dispute that from long before the attachment and sale of the plots, they were recorded in the name of Iqbal Husain as Bhumidhar. The learned lower appellate Court observed that Iqbal Husain might have deposited ten times rental and might have obtained Bhumidhari right in the same. It might be also possible that because the land was recorded as Sir, therefore, at the time of the enforcement of Zamindari Abolition and Land Reforms Act, it was wrongly recorded as Bhumidhari land of Iqbal Husain. However, the fact remains that Iqbal Husain has been recorded from before the sale as Bhumidhar of this land. Certainly no Bhumidhari right could have been claimed or conferred on Iqbal Husain on the basis of his father's possession over the land as exproprietary tenant although no legal steps were taken by Ch. Afzal Husain to get the land declared as exproprietary tenancy. The fact, therefore, remains that although the land continued to be entered as Sir land, Ch. Afzal Husain was in possession of the same as exproprietary tenant. Therefore, the correct entry about the land in dispute should have been that it should have been recorded as Sirdari land of Iqbal Husain. In a sirdari land, no Bhumidhari right can accrue unless the procedure prescribed under Section 134 of the U. P. Zamindari Abolition, and Land Reforms Act is fulfilled. An entry is presumed to be correct unless otherwise shown. Therefore, the most reasonable view would be that Iqbal Husain obtained Bhumidhari right in these plots as provided under Section 134 of the U. P. Zamindari Abolition and Land Reforms Act.
7. A Division Bench of this Court has held that if a person acquires Bhumidhari right in a land as provided under Section 134 of the U. P. Zamindari Abolition and Land Reforms Act, that right is his personal right and the Bhumidhari right so acquired cannot be sold in execution of a decree where the decree is against the asset of the debtor. The Division Bench case Baijnath v. Lakshmi Narain, 1971 All LT 194 = (AIR 1971 All ,398) applies on all fours to the facts of this case. Therefore, the plots in dispute being Bhumidhari land of Iqbal Husain could not be sold in execution of the decree which was against the asset of Ch. Afzal Husain, the debtor.
8. The next question which was pressed in this appeal was that the plea now raised by Iqbal Husain is barred by constructive res judicata. In so far as the plea, that the property in dispute was not saleable, was not taken by Iqbal Husain in his objection which he filed under Ordei 21, Bule 90, C.P.C. is concerned, the reply to this question would come round the fact as to whether such an objection is covered under Order 21, Bule 90, C.P.C. or under Section 47, C.P.C. Order 21, Rule 90, C.P.C. relates to setting aside or a sale on the ground of 'a material irregularity or fraud in publishing or conducting it'. Does the question about the saleabi-lity of the property relate to a question of material irregularity or fraud in publishing or conducting a sale? My reply to this question would be in the negative. There are a number of authorities to the effect that where the decree is against the asset of a deceased debtor, an objection by the judgment-debtor that the property belongs to him personally is one covered under Section 47, C.P.C. Such a person cannot file a regular suit or raise such an objection under Order 21, Rule 58, C.P.C. The question as to whether the property was saleable in execution of the decree is neither a question of fraud nor a question of material irregularity. In the instant case, the only question was as to whether the property was the asset of the deceased debtor against whose asset the decree has been passed or it was the personal property of Iqbal Husain." Such a question, in my opinion, is beyond the ambit of Order 21, Rule 90, C.P.C. This question could only be raised in an objection under Section 47, C.P.C. In Viren-
dra Kishore Shrivastava v. Keshorinandan Prasad, AIR 1962 Pat 410, the following observation can be read with advantage in this connection.
"For the next question whether the petitioner judgment-debtor had any sale- able interest in the property on the date of vesting would be a question not under Order 21, Bule 89 or under Order 21, Bule 90 or under Rule 91, but it would be a question under Section 47 of the Code of Civil Procedure which again is appealable."
In Merla Ramanna v. Nallaparaju, AIR 1956 SC 87, certain observation has been made which also goes to support the view which I have taken. In the Supreme Court case, the question was as to whether the property was saleable or not on the ground that it was not warranted by the terms of the decree. It was a question which could be agitated only by an application under Section 47, C.P.C.
9. Therefore, the objection under Order 21, Rule 90, C.P.C. being about irregularity and fraud in publishing the sale, the objection that the property was not saleable in execution of the decree was not covered under that Order and therefore the present objection under Section 47, C.P.C. is not barred by constructive res judicata because this objection could not have been . taken there and the fact that it was not taken there would not, in any way, make the principle of constructive res judicata applicable to the facts of this case. It is true that constructive res judicata applies to execution proceedings as well, but as the facts of this case stand, the non-mention of the ground in the objection under Order 21, Rule 90, C.P.C. that the property was not saleable in execution of the decree had not attracted the above principle but (?) it could not be taken. Such a plea could only be taken by an application under Section 47, C.P.C. and this is what has been done in this case. In this view of the matter, the objection of the judgment-debtor is not barred by the principle of res judicata.
10. So far as the question of limitation is concerned, it has been decided in favour of the judgment-debtor.
11. It was next argued that the objection was not maintainable after the confirmation of the sale and satisfaction of the decree. This argument too has no force in it. Section 47, C.P.C. applies to all cases where the dispute is about the execution, discharge and satisfaction of the decree. If the property was not saleable in execution of this decree the question is about the discharge of the decree and its satisfaction. Such an objection can be raised even after the confirmation of the sale and the above argument too has no force in it, the reason being simple that except an objection under Section 47, C.P.C., the judgment-debtor had no other remedy open to him. It is true that such an objection could be taken at a very early stage, but on that account alone, this objection which has been fully substantiated Cannot in equity and fair play be rejected.
12. The question of estoppel too does not arise. The learned lower appellate Court decided this point against the judgment-debtor on the finding that the objection was barred by constructive res judicata, while, in my opinion, it is not bsarred by estoppel.
13. It was also argued that the waqf was illusory. There is a clear finding of fact that the waqf was not illusory and this argument has no force in it.
14. For the reasons given above, the appeal is allowed, the judgments passed by the executing court and the lower appellate court are set aside. The objection by the judgment-debtor is allowed with costs throughout.