Jolly Tharian v. Kuruvila — 1997 DIGILAW 86 (KER)

Judgment :- P.K. Balasubramanyan, J. This revision is by judgment debtor No. 7 in O.S.154 of 1976, of the Subordinate Judge's Court of Parur. She is respondent No. 8 in E.A. 770 of 1994 filed by the auction purchaser for delivery of the property pursuant to the confirmation of sale in his favour. Overruling her objections the executing court allowed E.A. 770 of 1994 and ordered delivery of the property excluding a building therein to the auction purchaser and postponing the delivery of the building until C.R.P. 2469 of 1994 pending in this court was decided. 2. The State Bank of India, hereinafter called the decree holder obtained the decree for amounts due to it from M/ s. Trio Packaging Company, a partnerships which judgment debtor No. 7, the petitioner herein is a partner. Judgment debtor No.1 was the firm and judgment debtors 2 to 10 were the partners of the firm. The decree was for recovery of amounts specified in the decree with costs of the suit from the judgment debtors and the decree schedule property, an asset of the firm. The decree also directed the decree holder to sell the property first and to realise the amount due under the decree and for the balance made the partners, the other judgment debtors personally liable. What we are concerned with the present proceeding is the C schedule to the decree, an extent of 8.29.500 acres of land with building thereon. 3. The decree holder applied for execution of the decree. In that petition notice under O. XXIR. 66 of the Code of Civil Procedure was ordered to the judgment debtors. On receipt of notice judgment debtors 1 and 2, namely, the firm and a partner appeared. Subsequently, the executing court found that no steps have been taken against judgment debtors 3,5,6,7,8 and 9. That included the present revision petitioner. The execution petition was dismissed as against those judgment debtors for want of steps. Similarly it was dismissed also against judgment debtors 4 and 10, two other partners. There was no tenable objection from judgment debtor Nos.1 and 2 hence the property was proclaimed for sale. The property was sold and the same was purchased by the court auction purchaser. The court auction purchaser subsequently assigned portion of the property to others. The application for delivery was made by the court auction purchaser and his assignees. There was no tenable objection from judgment debtor Nos.1 and 2 hence the property was proclaimed for sale. The property was sold and the same was purchased by the court auction purchaser. The court auction purchaser subsequently assigned portion of the property to others. The application for delivery was made by the court auction purchaser and his assignees. It was that application that was allowed by the court below which is challenged in this revision. 4. Learned counsel for the revision petitioner contended that the property could not be delivered in view of the fact that the sale in execution of the decree was void as against judgment debtor No. 7, the revision petitioner since there was no notice under 0.21 R.66 of the Code of Civil Procedure proceeding the sale. He further contended that it was not necessary for the decree holder to sell the entire properties for realisation of the decree debt and having failed to sell only a portion of the property to see whether the decree cannot be realised, the sale itself was bad and hence no delivery could be effected. It was contended that the judgment debtor is aggrieved only when the property is sought to be delivered over and therefore, it is open to the judgment debtor to raise these objections at this stage when the delivery of the property is sought for by the decree holder. These contentions are met by the auction purchaser, the decree holder and the assignees from the auction purchaser by contending that the contentions of judgment debtor No. 7 are barred by prior orders in execution and there was no bonafides in the objection now sought to be raised and in the absence of an application for either setting aside the sale or for declaring it void under S.47 of the Code of Civil Procedure, no objection as now raised can be entertained for an application for delivery by the auction purchaser. 5. A little history needs to be narrated at this stage. The sale in execution of the decree was held on 5.8.1988. Two applications were filed before the executing court at that stage. Judgment debtors 1 and 2, the firm and its partners who had appeared in the execution and contested filed E.A. 608 of 1988 for setting aside the sale. A little history needs to be narrated at this stage. The sale in execution of the decree was held on 5.8.1988. Two applications were filed before the executing court at that stage. Judgment debtors 1 and 2, the firm and its partners who had appeared in the execution and contested filed E.A. 608 of 1988 for setting aside the sale. Judgment debtor No. 9 a partner of the firm who was in the same position as judgment debtor No. 7, the present revision petitioner, filed E.A. 606 of 1988 for the same purpose. While judgment debtors 1 and 2 raised other contentions, judgment debtorno. 9 primarily raised the contention that the sale held in execution of the decree was void for want of notice under O. XXI R.66 of the Code to the 9th judgment debtor and therefore, the sale was liable to be declared void. The executing court dismissed the applications filed by judgment debtor No. 9 and by judgment debtors 1 and 2 by separate orders, but on the same day. The 9th judgment debtor filed C.M.A. 8 of 1989 before this court challenging the dismissal of E.A. 606 of 1988 filed by her. Judgment debtors 1 and 2 filed C.M.A.41 of 1989 before this Court challenging the dismissal of E.A. 608 of 1988. Both the decree holder and the auction purchaser in addition to the firm and the second judgment debtor partner were parties to E.A. 606 of 1988 filed by the 9th judgment debtor and also to C.M.A. 8 of 1989. 6. Various aspects were considered in C.M.A. 8 of 1989 including the aspects now sought to be put forward by judgment debtor No. 7 - revision petitioner who was placed in a situation identical with the 9th judgment debtor, the appellant in C.M.A. 8 of 1989. After considering the matters elaborately a Division Bench, of this Court by judgment dated 5.4.199 3 (reported in 1993 (1) KLT 868) held that the sale could be set aside only if the judgment debtors paid the amount due under the decree as indicated in that judgment within six months of the date of that judgment. The Court held that there was material irregularity in publishing and conducting the sale resulting in substantial injury to the judgment debtors, but the sale was liable to be set aside only conditionally. The Court held that there was material irregularity in publishing and conducting the sale resulting in substantial injury to the judgment debtors, but the sale was liable to be set aside only conditionally. The court therefore, directed that the sale will be set aside on condition that the auction price together with 12% interest thereon from the respective dates of deposit of the amount together with an additional amount calculated at 5% of the bid amount as well as the entire post of execution inclusive of the cost of stamp paper are deposited by the judgment debtors in the executing court for payment to the auction purchaser within six months of that judgment, The Court also ordered that on the deposit being made the sale would stand set aside and in case the amount specified was not deposited within the time, the sale would stand confirmed. Obviously, the judgment debtors failed to deposit the amount as ordered by the Division Bench and hence on the expiry of six months from 5.4.1993 the sale stood confirmed. It is within one year of that date that the decree holder and his assignees have sought delivery of the property sold in execution. 7. In the decision in C.M.A. 8and41of 1989 this Court noticed the argument that a sale without notice under O. XXI R.66 of the Code was void and not voidable. But the Division Bench took note of the fact that Supreme Court in Dhirendra Nath v. Sudhir Chandra (AIR 1964 SC 1300), the Full Bench of the Kerala High Court in Govinda Menon v. Varkey (1970 KLT 440) and the Andhra Pradesh High Court in M.P.N. Reddi v. Maddivenkayya (AIR 1977 A.P. 234) had held the view that a sale without notice to the judgment debtor under O. XXIR. 66 of the Code of Civil Procedure was not void but was only voidable. 66 of the Code of Civil Procedure was not void but was only voidable. In the face of these decisions the Division Bench though it noticed the decision of the Madras High Court taking a contrary view in Jagannadh v. Perumal Naidu (AIR 1955 Madras 233) did not finally answer the contention since it found that there were as a matter of fact applications in the case for setting aside the sale and preferred to proceed on the basis of the ratio of the decision of the Full Bench of this Court holding that the sale would only be irregular and not void. It is thereafter that the Division Bench considered the relevant aspects and came to the conclusion that the sale was liable to be set aside but set aside only conditionally. Incidently this court also considered the question whether the entire property need have been sold by the executing court for realisation of the decree amount. Thus the two main contentions urged - if not the only two contentions urged - by the present revision petitioner were urged before the Division Bench leading ultimately to the conditional setting aside of the sale by the Division Bench. The judgment debtors including the partners or atleast the partner who was similarly situated as the present revision petitioner and who was the appellant in C.M. A. 8 of 1989 did not take advantage of the conditional order passed by the Division Bench and that has lead to the confirmation of the sale as ordered by the Division Bench. 8. According to me the two contentions now sought to be raised on behalf of the revision petitioner are concluded by the decision of the Division Bench as far as the present execution is concerned. There is no case for the revision petitioner that judgment debtor No. 9 was not bonafide litigating in respect of a right claimed in common with her when she filed E.A. 606 of 1988 for declaring the sale held in execution of the decree void and for reliefs against the court sale. Judgment debtor No. 9 who made E.A. 606 of 1988 and who filed C.M.A. 8 of 1989 was claiming a right which she was entitled to in common with the present revision petitioner, judgment debtor No. 7. Judgment debtor No. 9 who made E.A. 606 of 1988 and who filed C.M.A. 8 of 1989 was claiming a right which she was entitled to in common with the present revision petitioner, judgment debtor No. 7. Judgment debtor No. 9 and judgment debtor No. 7 were partners of the firm were made liable under the decree on identical basis and against both of them the execution petition stood dismissed for the failure of the decree holder to take steps as against them. The sale was of the property belonging to the firm in which the present revision petitioner, judgment debtor No. 7 had equal interest or right as judgment debtor No. 9. In such circumstances, I have no hesitation in holding that the decision of this Court in C.M. A. 8 of 1989 bars the present claim of judgment debtor No. 7 in the light of Explanation VII to S.11 of the Code of Civil Procedure, and Explanation VI to S.11 of the Code of Civil Procedure even though she was eo nominee, not a party to that decision. I am therefore, of the view that the claim of the revision petitioner, even if entertainable, at this state of delivery, is barred by res judicata. 9. The revision petitioner did not make any application for either setting aside the sale or for declaring the sale void. The objections are now sought to be put forward by the revision petitioner at the stage when the court auction purchaser has sought delivery of the property in execution. Not having moved the executing court for getting rid of the sale or to get it declared void in terms of S.47 of the Code of Civil Procedure, the revision petitioner is not entitled to put forward the claim that the sale was void at this stage of delivery. It is no doubt true that the question of voidness could be set up whenever and wherever a decree or order is sought to be enforced. It is no doubt true that the question of voidness could be set up whenever and wherever a decree or order is sought to be enforced. But when on the scheme of the Code, specific provisions are made both under O.XXI R.90 of the Code and under S.47 of the Code of Civil Procedure to deal with the contingencies of a sale being vitiated by material irregularity in the one case and being void in the other, it has to be held that the plea that the sale held in execution was void might and ought to have been raised by the revision petitioner at the appropriate time by making a motion in that behalf under S.47 of the Code of Civil Procedure. Such an objection cannot be raised in answer to a prayer for delivery of the property by the court auction purchaser after the sale in his favour stands confirmed. 10. Moreover, I am not in the position to agree with learned counsel for the revision petitioner that the sale has to be held to be void in this case. In the light of the decision of the Supreme Court in Dhirendra Nath v. Sudhir Chandra ((AIR 1964 SC 1300) and that of the Full Bench of this court in Govinda Menon v. Varkey (1970 KLT 440), the failure to issue a notice under O. XXI R.66 of the Code of Civil Procedure to a judgment debtor would not make the sale void but will only make it materially irregular. Moreover, this was so held by the Division Bench in the present execution in C.M. A. 41 of 1989 and 8 of 1989. Learned counsel for the revision petitioner relied on the decision of the Supreme Court in Desk Bandhu Gupta v. N.L. an and & Rajinder Singh ((1994) 1 SCC 131) to contend that the sale must be deemed void for want of notice under O. XXI R.66 of the Code of Civil Procedure. He particularly laid emphasis on the observation in that judgment that in that case the procedure adopted by the court was not in compliance with O. XXI Rr. 66 & 67 of the Code and was in flagrant breach of the mandatory provision and hence the sale was nullity ab initio. He particularly laid emphasis on the observation in that judgment that in that case the procedure adopted by the court was not in compliance with O. XXI Rr. 66 & 67 of the Code and was in flagrant breach of the mandatory provision and hence the sale was nullity ab initio. I must observe with respect that the decision of the Supreme Court in the above case should be understood in the context of the facts obtaining in that case and the collusion and fraud involved therein. Though the learned judges have noticed the decision of the Supreme Court in Dhirendra Nath v. Sudhir Chandra (AIR 1964 SC 1300), their Lordships did not differ from the view expressed in that decision but only stated that the judgment debtor having had the knowledge did not file any objection. In the present case also the circumstances clearly indicate that the present revision petitioner, judgment debtor No. 7 had notice of the proceedings in execution and she was aware of the steps in execution including the step taken by the judgment debtor to get the sale declared void. Moreover, I must observe that the decision in Dhirendra Nath was rendered by three judges whereas the decision in Desk Bandhu Gupta is rendered only by two Judges. Going by the clear direction given by the Supreme Court when confronted with such a situation, this court has necessarily to follow the decision rendered by three learned Judges. I am therefore, satisfied that the decision in Dhirendra Nath v. Sudhir Chandra (AIR 1964 SC 1300) should be followed by me with respect. Moreover, the facts of the present case show that the judgment debtors are one by one trying to thwart the recovery of the fruits of the decree by the decree holder and the court auction purchaser and this is really a case where there is absence of bonafides on the part of the partners of the firm including the revision petitioner especially when they did not take advantage of the relief granted to them by the Division Bench of this Court earlier by ordering the setting aside of the sale on the partners of the firm finding the necessary money for paying off the decree holder. In any view, since according to me it is not open to the revision petitioner to raise the question that the sale is void at this stage of delivery this aspect need not detain the further. 11. There is also another aspect to be considered. In the revision the first judgment debtorfirm.theprincipaljudgmentdebtorwasimpleadedasrespondentNo.9. The firm was respondent No. 2 in the executing court. The order for delivery was made with the judgment debtor on the party array. The revision petitioner for reasons best known to her got the firm struck out from the array of parties in the revision by filing C.M.P. 3826 of 1995 at her risk. I find considerable force in the submission of learned counsel for the auction purchaser that the order for delivery made against the firm and the partners by the court below cannot be varied in the absence of the firm on the party array. He pointed out that in such a case there would be a valid order for deli very against the firm, the principal debtor and there will be an inconsistent order refusing delivery in this revision and such a situation is not contemplated. The effect of-upholding the objections of the revision petitioner would be to declare that the sale is void and that the auction purchaser and his assignees would not be entitled to get delivery of the property. As against the firm there is a decree that the sale is valid and also an order for delivery of the property. The property belonged to the firm. The order for delivery as against the firm has become final. Since it is not contemplated that inconsistent orders be passed by the courts in such situations, I hold that the revision petitioner would not be entitled to any relief even assuming that she has made out a case for interference by this Court since the upholding of her claim would lead to this court passed an order inconsistent with the order of the executing court which has become final as against the first judgment debtor firm. This is not because of accidental omission to implead the firm to a case of deliberate removal of the firm from the arrary of parties after including it as a respondent in the revision. This is not because of accidental omission to implead the firm to a case of deliberate removal of the firm from the arrary of parties after including it as a respondent in the revision. Even if power under O. XLI R.33 of the Code may be available to the Court (this is a revision and not an appeal and the proceedings are in execution) this is not a fit case where this court ought to exercise that power in view of the earlier decision of the Division Bench and the opportunity given to the firm and the other judgment debtor including the partners to pay off the decree debt. In the result, I confirm the order of the executing court and dismiss this revision. In the circumstances of the case, I make no order as to costs.