The Allahabad High Court has dismissed an appeal saying that the Magistrate has the power to enforce an order of maintenance passed under Section 125 of CrPC by issuing a warrant to the Collector to recover the same as arrears of land revenue.
A Single Bench of Justice J.J Munir passed this order, while hearing an Appeal filed by Rama Nand.
This is a plaintiff’s appeal, arising out of a suit for declaration and permanent prohibitory injunction.
The facts of the case are that the plaintiff-appellant, Rama Nand, instituted an Original Suit in the Ex-Court of Munsif Havali, Varanasi, seeking a declaration to the effect that the proceedings of revenue sale dated 04.12.1982 and the sale letter based on it relating to land, detailed at the foot of the plaint, be declared void and a decree of permanent injunction granted, restraining the defendant respondent, Hira Lal from interfering with the plaintiff’s possession over the suit property or changing its nature and character.
The plaintiff’s case is that Smt Usha Devi brought proceedings against him under Section 125 CrPC in the Court of the Metropolitan Magistrate, Kanpur Nagar seeking award of maintenance.
In the maintenance case aforesaid, the Magistrate passed an ex parte order, granting maintenance to Smt Usha Devi on 13.01.1982. The ex parte maintenance order dated 13.01.1982 was passed against the plaintiff. The plaintiff, upon coming to know of the ex parte order, made an application to the Metropolitan Magistrate, Kanpur Nagar, seeking to set aside the sale.
The Magistrate on 17.05.1982 allowed the plaintiff’s application and set aside the ex parte maintenance order dated 13.01.1982.
In the meantime, on the basis of the ex parte maintenance order dated 13.01.1982, the defendant, in connivance with the Tehsildar and Naib Tehsildar, Varanasi, brought the plaintiff’s immovable property, detailed at the foot of the plaint to sale on 04.12.1982.
The plaintiff’s wife applied for the recovery of dues under the ex parte maintenance order. The plaintiff did not know anything about the revenue sale held, creating rights in favour of the defendant.
It is the plaintiff’s case that after the maintenance order dated 13.01.1982 had been set aside on 17.05.1982, sale of the plaintiff’s property on 04.12.1982 was one made without jurisdiction, as there was no maintenance order in existence then to execute.
It was also pleaded that the proceedings of the revenue sale be vitiated, because there was no proclamation by beat of drum, nor proceedings taken in accordance with law.
The sale is fraudulent and illegal. The further case is that the defendant, on the basis of the revenue sale concluded in his favour, is moving to forcefully dispossess the plaintiff.
The defendant put in a written statement, pleading that he had purchased the suit property in the revenue sale held, wherein there was no illegality or irregularity. The defendant on 04.12.1982, upon payment of sale consideration, that was fetched in the auction proceedings, purchased the suit property bona fide. He had paid a total consideration of Rs 10,000/-. The proceedings of the auction sale have been confirmed and the sale certificate issued in favour of the defendant. The legality or irregularity in conducting the sale cannot be questioned before the Civil Court.
The defendant never connived with Smt Usha Devi nor did he procure a judgment, based on any kind of conspiracy with Smt Usha Devi, or got the revenue sale held in furtherance of any conspiracy, as alleged by the plaintiff. The Tehsildar and the Naib Tehsildar did not take proceedings of the revenue sale in a manner that was bogus or fraudulent. The defendant, Hira Lal never had knowledge of the fact about the maintenance order passed ex parte under Section 125 CrPC against the plaintiff being set aside.
The defendant has averred that the plaintiff did not object to the auction proceedings before the Revenue Authorities. The Court has no jurisdiction to set aside the auction sale. The mutation order was made on the basis of the auction sale directing mutation of the defendant’s name over the suit property on 11.01.1985, where the plaintiff had objected. His objections were, however, rejected on 30.01.1985. The suit is barred by limitation. The suit property is in the ownership possession of the defendant. The suit is barred by the provisions of Section 331 of the U.P Z.A & L.R Act and the Civil Court has no jurisdiction to try the suit.
The Court noted, The Trial Court in its judgment has blamed the conduct of the plaintiff in not communicating the order dated May 17, 1982, setting aside the ex parte maintenance order dated January 13, 1982 to the Collector, Varanasi, as the reason why the revenue sale was held and the impugned sale certificate issued in the defendant’s favour.
The Trial Court also held that the defendant was a bona fide purchaser for value without notice, whose rights ought to be protected.
Nevertheless, the Trial Court held that the proceedings of the sale held on 04.12.1982 were illegal and void, but the decree of the Trial Court would be effective only upon the plaintiff paying the defendant a sum of Rs 10,000 together with interest at the rate of 18 percent per annum from the date of the auction sale in the defendant’s favour.
The suit was, therefore, decreed in part vide judgment and decree dated April 22, 1989 passed by the 12th Additional Munsif, Varanasi with a conditional injunction that the injunction would become effective after the plaintiff paid the entire sum of Rs 10,000, together with interest as directed.
Upon the defendant’s appeal carried to the District Judge of Varanasi, being Civil Appeal, the Additional District Judge, Varanasi vide his judgment and decree dated 14.05.1990, allowed the appeal, set aside the Trial Court’s judgment and decree dated 22.04.1989, and dismissed the suit. There was a cross-objection also preferred by the defendant before the Lower Appellate Court, which too was dismissed.
Dissatisfied with the judgment and decree passed by the Lower Appellate Court, the plaintiff has moved the Court, invoking our jurisdiction under Section 100 of the Code of Civil Procedure.
The Court further noted that,
The Lower Appellate Court went into wholesome detail of evidence bearing on the issues of fact and law involved and held that a copy of the order dated 17.05.1982, setting aside the ex parte maintenance order dated 13.01.1982, had not been produced in evidence by the plaintiff. Rather, there is a record of a later order dated 20.09.1982, again ordering ex parte maintenance, which bears Paper.
The Lower Appellate Court has held further that the plaintiff has urged a case that proceedings of the auction were illegal, but if that were so, the plaintiff had the right to move the Revenue Authorities and get the sale set aside. This has not been done.
The case of a conspiracy between the plaintiff’s wife and the defendant has too been disbelieved by the Lower Appellate Court in the absence of the slightest of evidence.
What has further been observed is that if the plaintiff’s case of the ex parte maintenance order being set aside is believed, though there is no evidence about it, the defendant is a bona fide purchaser.
The auction sale in his favour has been confirmed. In such circumstances, the consequence of the sale, even if it were set aside, would not be to deprive the auction purchaser of his rights in the suit property.
S.D Ojha, Counsel for the plaintiff submitted that it was not open to the Magistrate, who had the execution of the ex parte maintenance order before him, to enforce it by forwarding a recovery certificate to the Collector.
As such, all proceedings taken by the Revenue Authorities at Varanasi, pursuant to the recovery certificate issued by the Magistrate for enforcement of the ex parte maintenance order, are without jurisdiction.
S.N Tripathi, Advocate holding brief of Akhileshwar Mishra, Counsel for the defendant submitted that there is jurisdiction under the law available to the Magistrate to issue a recovery certificate to the Collector by virtue of the provisions of Section 125(3) CrPC.
“A conjoint reading of the provisions of Sections 125(3) and 421(1) of the Code shows that it is open to the Magistrate to enforce an order of maintenance that remains uncomplied with, for every breach of it, by the issue of a warrant for levying the amount due in the manner provided for levying fines.
Section 421(1) gives two options to the Magistrate: firstly, under Clause (a) of sub-Section (1) of Section 421, he may issue a warrant for levying the amount by attachment and sale of any movable property belonging to the offender.
In the context of maintenance proceedings, the provision would bear reference to the person in default of the maintenance order in place of the offender. Secondly, the Magistrate may issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, belonging to the defaulter.
Sub-Section (3) of Section 421 obliges the Collector, whenever a warrant is issued to him, to recover any amount, that qualifies for a fine, as arrears of land revenue in accordance with law, treating the warrant to be a recovery certificate issued under the law relating to land revenue recovery”, the Court observed.
“It is the discretion of the Magistrate, before whom an application for enforcement of the maintenance order comes up, either to issue a warrant for the levy of the amount by attachment and sale of movables of the defaulter under Section 421(1)(a) of the Code, or to issue a warrant to the Collector, authorizing him to realize the amount as arrears of land revenue.
“Here, the plaintiff questions the jurisdiction of the Magistrate to issue a warrant to the Collector for the recovery of the amount of maintenance in default as arrears of land revenue, because he says that the Magistrate had no such power. The said proposition is only stated to be rejected. The provisions of Section 125(3) and Section 421 read conjointly are a complete answer to the plaintiff’s denial of jurisdiction with the Magistrate to issue a warrant to the Collector for recovering the defaulted maintenance as arrears of land revenue.
The substantial question of law framed is, accordingly, answered in the affirmative and it is held that the Magistrate has power to enforce an order of maintenance passed under Section 125 CrPC by issuing a warrant to the Collector to recover the same as arrears of land revenue,” the Court said, while dismissing the appeal.