JUDGMENT
Shambhoo Singh, J.
1. This appeal has been preferred by defendant against the judgment and decree dated 25.9.1995 passed by Xllth Additional Judge to the Court of District Judge, Indore, in Civil Appeal No. 1/94.
2. The facts of the case, in brief, are that the ‘Gumati’ belonging to the respondent No. 1 /plaintiff Bhaiyalal was attached in Case No. 219/76/81-82 by Additional Tehsildar in execution of revenue recovery certificate issued for recov- ery of maintenance allowance in view of the order passed in M. J.C. No. 37/89 under Section 125 of the Code of Criminal Procedure in favour of Respondent No. 3- Jamnabai. This ‘Gumati’ was auctioned by the Additional Tehsildar and possession of ‘Gumati’ was given to the appellant and a sale certificate was issued in his favour. The respondent Bhaiyalal preferred an appeal bearing No. 42/83 challenging the attachment and auction-sale before the Sub-Divisional Officer, Indore, who al- lowed the same vide order dated 23.2.1985 holding that the auction of ‘Gumati’ was not in accordance with law. Against the order of the S.D.O. the appellant preferred Second Appeal (No. 181 /84-85) under Section 44(2) of the M.P. Land Revenue Code, 1859 (for short ‘the Code’) before the Additional Commissioner (Revenue) Indore Division, who dismissed the same by order dated 28.12.1983. This order was challenged in a levision petition (No. 32/2/85) by the appellant before the Board of Revenue which was allowed by order dated 30.4.1995 and orders of the Commissioner as well as of the S.D.O. were set aside and the order of Additional Tehsildar confirming the sale of the Gumaties in favour of the appellant was maintained. The Board of Revenue held that the order of the S.D.O. was final, therefore, appeal was maintainable. The respondent No. 1 was duly served with the notice of auction sale, yet he remained absent. The Board of Revenue also held that the objection to auction-sale filed by Rajkumar were barred by time, the Tehsildar was, therefore, perfectly justified in rejecting his objections. The respondent No. 1 filed M.P. No. 725/85 in this Court challenging the order passed by the Board of Revenue. This petition was dismissed by this Court by order dated 4.7.1987. Thereafter, the respondent/plaintiff filed CivilSuitNo.67-A/90 in the Court of lXth Civil Judge Class I, Indore on the pleadings inter alia that the order of maintenance dated 27.2.1980 passed in M.J.C. No. 37/79 has been set aside in Criminal Revision No. 163/84 by an order dated 27.3.1985, therefore, the recovery certificate issued by Criminal Court for recovery of arrears of maintenance has become in fructuous and consequently the sale certificate has become nullity. The sale certificate was obtained by fraud. The auction sale proceedings were illegal. He prayed for declaration that auction sale proceedings being without jurisdiction are null and void and for possession.
3. The appellant-defendant in his written statement raised, inter alia, a ground to the effect that the order passed by this Court in Misc. Petition No. 725/85 operates as res judicata to the present suit. In view of the pleadings of the parties, the Trial Judge framed the following issues :
Issue No. 9 : Whether the suit is barred by res judicata ?
Issue No. 10 : Whether the auction proceedings of the Gumaties were not challenged in previous suit, therefore, the present suit is barred under Order 2, Rule 2, Civil Procedure Code ? Issue No. 10 was decided in favour of appellant-defendant. However, issue No. 9 was decided against him and it was held vide order dated 21.12.1993 that the order passed by this Court in Misc. Petition No. 725/85 dated 4.7.1987 operates as res judicata under Section 11 Explanation VIII of the C.P.C. and dismissed the suit.
4. The respondent-defendant challenged this judgment and decree in Civil Appeal No. 1/94. The learned XIIth Additional Judge to the Court of District Judge allowed the appeal and held that the order passed by this Court in Misc. Petition No. 725/85 dated 4.7.1987 does not operate as res judicata and he set aside the judgment and decree passed by the Civil Judge, dated 21.12.1993 and remanded the case for trial, this judgment and decree have been challenged in this appeal.
5. Mr. Gokhle, learned Counsel for the appellant-defendant, contended that the Appellate Court committed error in holding that the order passed by this Court in Misc. Petition No. 725 /85 dated 4.7.1987 does not operate as res judicata. He relied on the case of Union of India v. Nanak Singh, reported in AIR 1968 SC 1370, and 1996 RN 91 (HC), Budhram Soni & Ors. v. State of M. P. & Ors. He submitted that the Board of Revenue in Revision Petition No. 33/2/85 maintained the order of the Tehsildar confirming the sale in favour of appellant-defendant. This order was challenged by respondent-plaintiff in this Court in M.P. No. 725/85 and said petition was dismissed after hearing both the parties. Therefore, in view of Nanak Singh’s case (supra) this order operates as res judicata. He contended that the decision of Revenue Courts operate as res judicata in subsequent civil suit in view of Section 11, Explanation VIII. He put reliance on, Budhram Soni & Ors. v. State of M.P. & Ors. (supra). Repelling the arguments advanced by Mr. Gokhle, Mr. Panjwani, learned Counsel for the respondent-plaintiff, contended that in M.P. No. 725 /85 this Court did not pass orders on merits. The legality of the auction proceedings was not decided. This Court dismissed said petition as question of facts and evidence could not be gone in writ petition. Therefore, that order does not operate as res judicata. He also submitted that this suit has also been filed under Rule 45(2) of Schedule 1 of the Act on the ground of irregularity brought about by fraud and also on the ground that the arrears for which the ‘Gumati’ was auctioned was not due. This point was not raised and decided, therefore, the question of operation ot res judicata does not arise.
6. After hearing learned Counsels for both the parties and going through the record, I am of the opinion that the present appeal is without substance. From the perusal of the order passed this Court in M.P. No. 725/85 dated 4.7.1987, it is clear that this Court did not decide the petition on merits. It observed ‘Generally speaking, all these submissions are beyond scope of Article 227 of the Constitution of India and its scope is well settled by numerous decisions of the Supreme Court. This Court cannot by invoking the extraordinary jurisdiction under Article 227 of the Constitution substitute its own view on findings of facts. The Court held that the petitioner had challenged the auction proceedings of Gumaties on question of facts and evidence which cannot be gone into writ jurisdiction under Article 227 of the Constitution of India. From these observations, it is clear that this Court did not decide the Misc. Petition No. 725/85 on merits as the facts were disputed and they could be decided on evidence produced by the parties. The order passed in previous (sic.) their contentions thereon. As stated earlier, in Misc. Petition No. 725/85, the dispute regarding the legality of auction sale was not heard and decided on its merits expressly or by implication. The decision of the Supreme Court in the case of Nanak Singh (supra) is not applicable to the instant case. In that case, the Division Bench of the High Court, in an appeal against the order of Single Judge passed by him in a writ petition under Article 226 of the Constitution of India, gave decision on merits. Before the Division Bench two points were raised, one was that the termination of the service of Nanak Singh amounted to punishment and no show cause notice was given. Therefore, the order of termination was illegal. The order was also challenged on the ground that Additional Settlement Commissioner was not competent to terminate the services of Nanak Singh. The Division Bench held that the order of termination of service did not amount to punishment on the petitioner Nanak Singh, therefore, the order of termination was legal, however, it did not consider the point of competency of the Additional Settlement Commissioner in passing the order of termination. Under these circumstances, the Supreme Court held that the Division Bench had considered the dispute on merits and after hearing both the parties, order as passed on merits, therefore, the order of Division Bench operated as resjudicata to the suit.
7. It is true that in view of Section 11, Explanation VIII of the Civil Procedure Code, the decision of Revenue Court on an issue notwithstanding the fact that it is a Court of limited jurisdiction, operates as resjudicata in a subsequent suit, but the condition is that the issue must have been heard and finally decided. In this case the Board of Revenue by order dated 30.4.1985 has upheld that the order of Tehsildar does not suffer from any irregularity and this order has become final even then the present suit is not barred by resjudicata as this suit has been filed inter alia on the ground mentioned in Rules 45(2) also. Rule 45 reads as under:
Rule 45:
(1) If no application under Rule 41 is made, within the time allowed, therefore, all claims on the ground of irregularity or mistake shall be barred.
(2) Nothing in Sub-rule (1) shall bar the institution of a suit in the Civil Court to set aside a sale on the ground of fraud or on the ground that the arrear for which the property is sold is not due or on the ground that the defaulter had no saleable interest in the property sold.
From the perusal of this rule it is clear that the institution of suit in Civil Court to set aside a sale on the ground of fraud or on the ground that the arrears for which the property is sold is not due or on the ground that the defaulter had no saleable interest in the property sold is not barred. As these grounds were not raised, the issue regarding these grounds was not heard and finally decided. Therefore, the principle of resjudicata does not apply to the present suit.
8. It was argued that the cause of action about these grounds arose on the date of confirmation of sale by the Tehsildar, therefore, present suit is barred by time. If there is pleading to this effect, the Trial Court shall raise issue on this point and would decide after hearing both the parties.
9. For the reasons mentioned above, I do not find any merit in the appeal. Accordingly, it is dismissed but without cost.