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1997 DIGILAW 48 (KER)

Ouseph Joseph v. Thresia

1997-01-31

P.K.BALASUBRAMANYAN

body1997
Judgment :- Heard both sides. This revision is by the judgment debtor. It challenges the order of the executing Court overruling two objections raised by the judgment debtor to the execution. In execution of decree for money, the property was sold on 13.3.1978. The judgment debtor filed an application for setting aside the sale by invoking O. XXIR. 90 of the Code of Civil Procedure. That application was dismissed for default and the sale was confirmed. Subsequently, the dismissal of the application was set aside and the application for setting aside the sale was restored. It was thereafter dismissed on merits on 18.3.1981. The judgment debtor challenged that order in an appeal in this Court by riling E.F. A. 7/81. During that appeal judgment debtor obtained a conditional order of stay of further proceedings in execution. When that appeal was pending, certain other interested persons filed applications E.A. Nos. 467,468 and 469 of 1981 (subsequently re-numbered as E.A. Nos. 91, 92 and 93 of 1985) for setting aside the sale. Those applications were entertained by the executing Court. After a trial of those applications the said applications were dismissed on 9.8.1988. The appeal E.F. A. 7/81 filed by the judgment debtor against the debtor in E.A. 28/78, the application under the O. XXI R.90, was dismissed by this Court on 1.1.1991. 2. Meanwhile, the decree holder applied for delivery of the property on dismissal of applications for setting aside the sale E.A. 91, 92 and 93 of 1985. That application for delivery was made on 22.11.1988, in about 3 months of dismissal of the applications referred to earlier. The judgment debtor raised a contention that the application was barred by limitation, since it was not tiled within one year of the confirmation of sale, in terms of Art.134 of the Limitation Act. Certain other objections were also sought to be raised including the objection that the decree holder having died, his legal representatives could seek delivery only after producing the succession certificate. Those objections were overruled by the executing Court and the decision of the executing Court was challenged before this Court in C.R.P. 4-96. This Court held by its order dated 2.1.1996 that in view of the fact that the sale would become enforceable only on 9.8.1988 with dismissal of the applications E.A. Nos. Those objections were overruled by the executing Court and the decision of the executing Court was challenged before this Court in C.R.P. 4-96. This Court held by its order dated 2.1.1996 that in view of the fact that the sale would become enforceable only on 9.8.1988 with dismissal of the applications E.A. Nos. 91,92 and 93/85 and in view of the fact that the appeal E.F.A. 7/81 was dismissed only on 1.1.1991, the application for delivery was in time and could not be held to be barred by limitation. The other objections were also not accepted by this Court. Thus, this Court dismissed the revision. The judgment debtor seems to have filed another application E.A. 70/96 reiterated the objections which had already been overruled by the executing Court and affirmed by this Court. It appears to me that E.A. 70/1996 filed by the judgment. debtor is an abuse of process of Court. A litigant is not expected to go on raising the same objections again and again, even when they have already been overruled by the Court. Entertainment of such repeated objections would go against me very public policy embodied in S.11 of the Code of Civil Procedure. This application was opposed by the decree holders. The executing Court by its order dated 12.4.1996 held that there is no merit in the contentions sought to be raised by the judgment debtor and that the claims were also barred by resjudicata by the prior order i n execution, affirmed in revision. This order is challenged in this revision by the judgment debtor. 3. On merits, I see no reason to accept the contentions raised on behalf of the judgment debtor. Since the sale became effective only by the dismissal of the appeal on 1.1.1991, dire is no question of the application for delivery being barred by limitation. When an appeal is filed, against the order refusing to set aside the sale, the absoluteness of the sale remains suspended by a virtue of the pendency of the appeal and the decree holder is entitled to apply for delivery on the appeal being dismissed, on the basis that he has got one year's time under Art.134 of Limitation Act from the date of the appellate decree or order. This position is clear from the decision of the Supreme Court in Maganlal v. A/ A. Jaiswal Industries Neemach (AIR 1989 SC 2113). This position is clear from the decision of the Supreme Court in Maganlal v. A/ A. Jaiswal Industries Neemach (AIR 1989 SC 2113). In addition, in the present case, there were applications for setting aside the sale at the instance of strangers which are entertained and adjudicated upon by the executing Court and dose applications were dismissed only on 9.8.1988. The application for delivery was made on 22.11.1988 presumably because the judgment debtor did not comply with the interim order of this Court in'E. F.A. 7/81. The decree holder having applied widen one year of 9.8.1998, when the challenge to the sale was rejected by the executing Court, the application for delivery could not be said to be barred by limitation. Moreover, the contentions sought to be raised are concluded by the earlier order of the executing Court in E. A.332/88 and the decision of this Court in C.R.P.4/96. 4. Learned Counsel for the judgment debtor relied on the decision of the Supreme Court in Ganapat Singh v. Kailash Shankar (AIR 1987 SC 1443) to contend that the application for delivery is barred by limitation. I do not see how this decision can support the judgment debtor. All that was decided in that decision was that the applicatory articles for an application for delivery pursuant to a Court auction purchase is Art.134 and not Art.136 of the Limitation Act. There is no contention for the decree holder here dial the application is governed by Art.136 of the Limitation Act. Their contention is that under Art.134 of Limitation Act their application was in time. The light of the decision in Maganlal v. A/A. Jaiswal Industries Neemach (AIR 1989 S.C. 2113) I have already held that their application is within time. The decision in Ganpat Singh v, Kailash Shankar (AIR 1987 SC 1443) has no relevance in this context. 5. Learned counsel for the judgment debtor further contended that the judgment debtor has filed an application for review of the order in C.R.P. 4/96 as R.P. 102/96, that the said review petition has been heard but orders have not been pronounced. Even assuming that the order in CRP 4-96 has not become final (that alone should be the effect of the review at the moment) the question is whether the application for delivery is barred by limitation. Even assuming that the order in CRP 4-96 has not become final (that alone should be the effect of the review at the moment) the question is whether the application for delivery is barred by limitation. Since I have held and according to me the position is clear, that the application for delivery is not barred by limitation, I am not inclined to accept the contention of counsel of the judgment debtor that this Court should await the decision in R.P. 102/96. Even without the aid of the order in C.R.P. 4/96 the position is clear that the application for delivery is in time. In that circumstance, I overrule the contention of counsel for the judgment debtor that this Court should await the final order in R.P. 102/96. 6. Similarly, the objection that the legal representatives of the decree holder, before seeking delivery should obtain a Succession Certificate does not appear to me. According to me, the executing Court is right in holding that after the sale is confirmed and the decree holder is proceeding for delivery, there is no call for the production of any Succession Certificate as envisaged by S.214 of the Indian Succession Act. S.214 of the Indian Succession Act contemplates the production of a Succession Certificate in a case where a debt is sought to be recovered. The fact that the suit was for money and therefore, it was a suit for recovery of a debt does not have any relevance once the suit has ended in a decree and in execution of a decree, the property is sold and the decree holder purchases the property in satisfaction of the decree. Thereafter, it is only a question of delivering the property in execution to a purchaser at a court auction, though he might have also the character of a decree holder. I am therefore satisfied that there is no substance in the contention that the Succession Certificate is necessary before delivery could be sought for. Of course, this part of the case is also concluded by the earlier orders by the executing Court. In any event, the judgment debtor might and ought to have raised this objection earlier and he having failed to raise this objection before the executing Court which overruled his objections earlier, this contentions is also barred by resjudicata. 7. I thus find no merit in this Civil Revision Petition. In any event, the judgment debtor might and ought to have raised this objection earlier and he having failed to raise this objection before the executing Court which overruled his objections earlier, this contentions is also barred by resjudicata. 7. I thus find no merit in this Civil Revision Petition. The order of the executing Court is confirmed and this revision is dismissed. Since I find that the objection repeatedly raised by the judgment debtor is totally untenable, I direct the executing Court to effect delivery of the property forthwith and report that fact to this Court.