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Kerala High Court · body

1987 DIGILAW 205 (KER)

LALITHAMMA v. RAMACHANDRA IYER

1987-05-25

G.VISWANATHA.IYER

body1987
Judgment :- 1. Judgment-debtor in a suit for realisation of money due to the respondent is the petitioner. The revision petition arises in execution and is directed against an order of the lower court by which it dismissed an application filed by the petitioner for staying sale of property on the ground that she is an agriculturist entitled to benefit of proviso (c) to S.60(1) of the CPC. The decree in the suit was passed on 30th June, 1983. The decree was one for realisation of amounts due to the respondents from the petitioner personally and from out of her properties. The decree-holder filed petition for recovery of the money by sale of the properties belonging to the petitioner. It would appear that this property had been attached before judgment. After service of notice on the petitioner, the court sealed the proclamation of sale on 5-7-1984 and ordered the sale to take place on 8-8-1984. That order for sale was not challenged and there was also no objection raised to the saleability of the property at that stage. The property in question is stated to be a small piece of land with a residential building thereon in Trivandrum Municipal limits in which the petitioner is stated to be residing. The sale posted to 8-8-1984 stood, adjourned from time to time and it was thereafter that the petitioner came forward with this application EA No. 99 of 1985 for staying the sale claiming the benefits of proviso (c) to S.60(1) of the C.P.C. as mentioned earlier. 2. The lower court dismissed the application holding that the petitioner was barred on the principle of constructive res judicata from raising the objection of non-saleability under proviso (c) to S.60(1) at this stage as she had not raised this objection at any time before the order for sale was made. 3. Counsel for the petitioner urged before me that the petitioner is not precluded from raising this objection regarding saleability of the property at the subsequent stages of the same execution petition, though she had not raised the objection before the order for sale was made on 5-7-1984. 3. Counsel for the petitioner urged before me that the petitioner is not precluded from raising this objection regarding saleability of the property at the subsequent stages of the same execution petition, though she had not raised the objection before the order for sale was made on 5-7-1984. He placed reliance on the decision of Raghavan J. in Kannan v. Govindan 1962 KLT 675, where the learned judge had held that a judgment debtor who fails to raise an objection at a prior stage of an execution petition is not barred from raising the objection at a later stags of the same execution petition though if he raises it in a subsequent execution petition he would be barred if the previous execution petition had become fractious. That was a case where property belonging to the judgment debtor was brought to sale after attachment. The judgment debtor who had been served with notice of the execution petition did not object to the attachment of the property. But when notice of the sale proclamation was served on him he raised the objection that the property was not liable for attachment or for sale as he was entitled to the benefit of proviso (c) to S.60(1) of the CPC. This contention was accepted by the learned judge with the dictum mentioned above. However, that was a case where the objection was raised to the saleability of the property before the order for sale was made. All that the learned judge held was that the absence of objection to the attachment will not preclude objection to the sale, when it is in the subsequent stages of the same execution petition. In other words what the learned judge did was to recognise a right in the judgment debtor to object to a sale, even though he had not objected to the attachment earlier, and that such an objection was not barred by constructive res judicata. 4. The position in this case is different. There was no objection to the attachment. There was also no objection to the sale. In fact sale was ordered on 5-7-1984, at a stage when the petitioner did not raise any objection to the saleability. That order became final. It is not open to the judgment debtor to raise an objection to sale at a subsequent stage, even though in the same execution petition. There was also no objection to the sale. In fact sale was ordered on 5-7-1984, at a stage when the petitioner did not raise any objection to the saleability. That order became final. It is not open to the judgment debtor to raise an objection to sale at a subsequent stage, even though in the same execution petition. That will be enabling the judgment debtor to reopen an order which he has accepted and which has become final, for which there is no warrant in law. The law cannot permit a judgment debtor to keep his objections in reserve and raise them piece-meal. All the objections to the execution should be brought in proper time, at the earliest opportunity and even if an objection to sale could be raised subsequently as held by Raghavan, J. in Kannan's case, that should also be done before an order for sale is made and not at a time after the order for sale, though it may be before the actual sale. It may also be noted that the prohibition contained in proviso (c) to S.60(1) is not absolute and that the agriculturist can waive the benefit conferred on him. By not raising an objection to the sale, it may be inferred that the petitioner, even if she is an agriculturist, entitled to the benefits of proviso (c) to S.60(1) has waived the benefit conferred on her by the said proviso. 5. Looking at it either way the petitioner is not entitled to object to the sale of the property which has been ordered as early as on 5-7-1984. This is apart from the fact that the question whether she is an agriculturist entitled to the benefit of proviso (c) to S.60(1) is itself in dispute. That is a matter on which I am not expressing any opinion since the lower court has not gone into the matter in the view that it took about the petitioner's entitlement to raise the objection in question at this late stage. There is no merit in the revision petition. It is accordingly dismissed with costs.