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2004 DIGILAW 737 (AP)

Charles Joseph v. Mohd. Mazaruddin

2004-07-27

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS revision is filed by the judgment-debtor in the decree passed in o. S. No. 373 of 1992 on the file of the principal Senior Civil Judge, Warangal. ( 2 ) SMT. Veronica, the second respondent herein, filed O. S. No. 373 of 1992 against the petitioner for recovery of a sum of rs. 34,072/ -. During pendency of the suit, the second respondent filed LA. No. 1585 of 1992 under Order XXXVIII Rule 5 C. P. C. Through order dated 1. 12. 1992, the Trial court effected attachment before judgment in relation to the property mentioned in the petition. The suit was decreed on 16. 12. 1994 and it became final. ( 3 ) SINCE the petitioner did not satisfy the decree, the second respondent filed e. P. No. 50 of 1997 to bring the attached property to sale. The petitioner raised several objections from time to time, before the property attached in LA. No. 1585 of 1992 was brought to sale. In the ultimate sale of the property that was held at the executing court, the first respondent emerged as the highest bidder. He deposited the sale amount and a sale deed was also executed in his favour. He filed E. A. No. 197 of 2003 under rule 95 of Order XXI C. P. C. , for delivery of the possession of the property, was filed. Through its order dated 5. 1. 2004, the executing Court allowed the application. Hence this revision. ( 4 ) SRI Vinod Kumar Deshpande, learned Counsel for the petitioner, submits that though the auction was held in respect of the property comprised in the house bearing No. 1-5-47, at Jubilee Market, khajipet, the executing Court had described the property by including the ground and first floors in the schedule in the delivery warrant. He submits that what was attached and brought to sale was only ground floor and it is impermissible for the executing court to expand the scope of the E. P. by bringing the first floor also within the ambit of execution proceedings. ( 5 ) SRI Ch. Pratap, learned Counsel for the first respondent, on the other hand, submits that once a sale certificate is issued in respect of the property brought to sale in execution proceedings, the judgment debtor has no role to play in the matter. ( 5 ) SRI Ch. Pratap, learned Counsel for the first respondent, on the other hand, submits that once a sale certificate is issued in respect of the property brought to sale in execution proceedings, the judgment debtor has no role to play in the matter. He contends that the petitioner undertook certain constructions over the terrace of the schedule property, after the property was attached and sold in the auction held by the Court. He contends that any improvements or alterations made after the property is attached cannot enure to the benefit of the judgment-debtor, or for that matter any other person. ( 6 ) THE suit filed by the second respondent against the petitioner for recovery of certain amount was decreed ex parte and it became final. Even while the suit was pending, the house property bearing no. 1-5-47 New (1-328/2 old) at Market street, Khajipet was attached before judgment. On the basis of the ex parte decree, the second respondent initiated execution proceedings. At that stage, the petitioner came forward to pay the decretal amount in instalments. However, he committed default in payment of instalments. Hence, the executing Court proceeded with the sale of the attached property. ( 7 ) THE petitioner filed E. A. No. 326 of 1998 under Rule 90 of Order XXI C. P. C. alleging that the value fixed for the attached property is far less than the market value. E. A. was dismissed on 24. 2. 1999. He filed c. M. A. No. 860 of 1999 before this Court. The C. M. A. was dismissed through orders dated 25. 2. 2003. In the auction that was held by the executing Court, the first respondent emerged as the highest bidder and he deposited the bid amount. The sale was ultimately confirmed through orders dated 10. 7. 2003. ( 8 ) THE petitioner filed C. R. P. No. 3509 of 2003 before this Court against the orders dated 10. 7. 2003 passed by the executing court. His contention was that there was non-compliance of Rule 85 of Order XXI c. P. C. namely, the first respondent failed to deposit the necessary stamp for engrossing the sale certificate within 15 days, as mandated under that rule. The C. R. P. was dismissed by this Court on 11. 8. 2003. Thereafter, the first respondent was issued the sale certificate. The C. R. P. was dismissed by this Court on 11. 8. 2003. Thereafter, the first respondent was issued the sale certificate. The bailiff of the Court was directed to deliver possession of the property to the first respondent. ( 9 ) THE bailiff submitted a report stating that there is variation as to the description of the property compared to the particulars furnished in the schedule, and the property available on the ground. It was in this context that the first respondent filed E. A. No. 197 of 2003 under Rule 95 of Order XXI c. P. C. The executing Court noted the various developments and ultimately directed that the property shown in the schedule to the order be delivered to the first respondent. ( 10 ) THE main contention advanced on behalf of the petitioner is that only ground floor of the property in 1-5-47 was attached and brought to sale and the possession of the first floor existing in the same premises cannot be delivered to the first respondent. If viewed in isolation, this plea appears to be very much tenable. However, if the background, in which the first floor came into existence, is taken note of, the lack of bona fides on the part of the petitioner and the absence of any right in him in this regard would be manifest. ( 11 ) THERE is no dispute that the property is comprised within fixed boundaries on four sides and what was attached before judgment, comprised of only ground floor. The petitioner has undertaken construction on it, not only when the attachment was subsisting, but, in fact, after the sale was conducted by the executing Court. The first respondent emerged as the highest bidder. In a way, the effort of the petitioner was to alter the nature of the property and to plead the same as a ground to frustrate the sale. Once the property is attached, either before judgment or for the first time in the execution proceedings, the rights of the party, who held it, become restricted. Just as any encumbrance created after attachment shall be of no legal consequence, any improvements or alterations made voluntarily by the party, without the specific permission of the Court, do not have the effect of defeating the rights of the person at whose instance the property was attached. Just as any encumbrance created after attachment shall be of no legal consequence, any improvements or alterations made voluntarily by the party, without the specific permission of the Court, do not have the effect of defeating the rights of the person at whose instance the property was attached. The situation gets further altered drastically once it is brought to sale. With the issuance of a sale certificate under Rule 94 of Order XXI c. P. C. in favour of the auction-purchaser, absolute rights vest in him. ( 12 ) ONCE the property is brought to sale, in execution of a decree, the judgment debtor virtually disappears from the field for all practical purposes. In Han Kishan v. Radha Kishan, AIR 1957 All 251 , a Division bench of the Allahabad High Court held that the delivery of possession of an immovable property, consequent on the auction held in execution proceedings, is a matter between the Court and the auction purchaser and the judgment-debtor has no say or, role to play in it. In Pethaperumal ambalam v. Chidambaram Chettiar, AIR 1954 Mad. 760 , a Division Bench of the madras High Court held that neither the judgment-debtor nor any person claiming through him can object the delivery of possession. It was also observed that the code does not contemplate issuance of notice to the judgment-debtor at the stage of delivery of possession under Rule 95 of order XXI C. P. C. ( 13 ) THE petitioner has chosen to undertake construction over the property, which was not only attached but was also brought to sale. It is not known whether the amount spent by him for construction would have been sufficient to pay the decretal amount. However, his attempt appears to be to alter the nature of the property so that an objection can be raised, at the time of delivery, pleading that the property that was attached did hot remain the same, by the time of delivery of possession. Apart from disclosing lack of bona fides on the part of the petitioner, the step undertaken by him neither enures to his benefit nor does it clothe him with any rights. Apart from disclosing lack of bona fides on the part of the petitioner, the step undertaken by him neither enures to his benefit nor does it clothe him with any rights. ( 14 ) A technical plea is sought to be raised on the ground that though the property that was attached and brought to sale does not comprise the first floor, in the schedule to the order under revision, the first floor is also included. In this connection, it needs to be observed that the attached property was comprised in four specific boundaries and the height or plinth area of the structure was not mentioned. The attachment was not restricted to any area in the said premises. As observed earlier, once an attachment is effected, the owner thereof is not entitled in law to alter the nature physically or to bring about any encumbrances. If the petitioner has chosen to make improvements to the property subsequent to sale, he did it at his peril. It is not the case of the petitioner that boundaries furnished in the order of attachment, on the one hand, and the impugned order, on the other, are different. When the attachment is in respect of the entire premises, without excluding any portion, vertically or horizontally, the petitioner cannot insist that part of it be excluded, at the time of delivery of possession, that too, on the strength of his own mis-adventure. ( 15 ) LEARNED Counsel for the petitioner relied upon the judgments of the Hon ble supreme Court as well as this Court, in support of his plea that in the event of dispute as to the extent, the boundaries shall prevail. Such a contingency does not arise in this case. The boundaries as well as the extent remain the same. If at all there is anything, it is only the height of the building that was increased, by the petitioner, that too after the sale was held. ( 16 ) VIEWED from any angle, this Court does not find any basis to interfere with the order under revision. The civil revision petition is accordingly dismissed.