Rajasthan Financial Corporation, Bhilwara v. M/s. Kanodia Rubber Pvt. Ltd.
2006-03-24
BHAGABATI PRASAD BANERJEE
body2006
DigiLaw.ai
Judgment Bhagwati Prasad, J.-By the instant appeal the Rajasthan Financial Corporation (hereinafter for short "the RFC") has challenged the order dated 09.05.2001 passed by the learned Execution Court below whereby an objection raised by the RFC in the execution proceedings launched by the Respondent No. 2 against the Respondent No. 1 was rejected. 2. According the case of RFC a loan of Rs. 27.50 lacs was granted to the Respondent No. 1 private limited company in the year 1982. To secure the loan amount machinery, building and land of the borrower company was kept as mortgage by the RFC. The borrower company later on defaulted in the re-payment of the loan and according to the RFC the property of the borrower company was taken into the possession in the year 1999 under Section 29 of the State Financial Corporation Act, 1951. 3. The Respondent No. 2 Kushal Bordia had filed a suit (Suit No. 132/1987) for recovery of arrears of rent against the Respondent No. 1 which was decreed on 19.05.1988 but due to the non-payment of decreetal amount the Respondent No. 2 had filed the execution petition (Execution Case No.11/2001) before the learned trial Court and requested the Court to recover the decreetal amount by auctioning the property of the Judgment debtor. 4. It is further case of the RFC that since the property in question was in its possession and same was the mortgaged property hence same cannot be subjected to the said execution proceedings hence objections were filed by the RFC under Order 21 Rule 58, CPC on 03.01.1990 and same was registered as Case No. 01/1990 and rejected by the learned Execution Court on 30.01.1999. Thereafter, another objection petition was filed under Section 47, CPC by the RFC but it had been rejected on 16.09.2000. 5. According to the further case of RFC when it came into their knowledge that a peace of property in question was being auctioned in execution proceedings then another petition was moved under Order 21 Rule 56, CPC alongwith stay application. But the learned Execution Court rejected the said Application No. 29.05.2001 hence the present appeal has been filed to assail the said order. 6. I have heard learned Counsel for the parties and perused the record of the Execution Court. Undisputedly, this is the third objection petition on the same grounds filed by the RFC.
But the learned Execution Court rejected the said Application No. 29.05.2001 hence the present appeal has been filed to assail the said order. 6. I have heard learned Counsel for the parties and perused the record of the Execution Court. Undisputedly, this is the third objection petition on the same grounds filed by the RFC. The first objection petition was filed by the RFC in the year 1990 remained pending for 9 years merely for the removal of defects pointed out by the office of the learned Execution Court. The RFC who had moved the said objection petition was so lethargic that it took as many as 49 adjournments during the period of 9 years merely for curing the defects but failed to take any steps for removal the same and ultimately the learned Execution Court below dismissed the said petition in the year 1999 on account of ground of non-prosecution and non-appearance. No efforts appears to have made by the RFC to get restored the said petition hence it had attained the finality. Beside it is also undisputed position that second objection petition was moved by the appellant and that too had been rejected by the learned Execution Court below in the year 2000 on merits. Admittedly, no remedy against the said rejection had been availed by the RFC. The learned Counsel for the RFC has also admitted that a piece of land in question has already been sold by way of auction in the execution proceedings and sale has been confirmed in favour of the purchaser. 7. In view of the aforesaid facts and circumstances I am of the considered view that this appeal cannot succeed because this is the third attempt made by the RFC to agitate the same objections again and again. When the earlier objection petition filed by the appellant has already been dismissed on account of non-prosecution and non-appearance beside subsequent objection petition raising the same ground has been dismissed on merits by the Execution Court vide order dated 16.09.2000 then the order has attained finality because no appellate remedy had been availed by the objector RFC. Hence, the issue already decided by the competent Court cannot be raised by launching the third application on the same grounds. The RFC is estopped from raising the same objections subsequently. The approach of RFC is nothing but an abuse of the process of the Court.
Hence, the issue already decided by the competent Court cannot be raised by launching the third application on the same grounds. The RFC is estopped from raising the same objections subsequently. The approach of RFC is nothing but an abuse of the process of the Court. If such applications are entertained then it will amount to miscarriage of justice and there will be no end of litigation. Beside it will cause great injustice and hardship with the decree-holder Respondent No. 2 who visited regularly at the door steps of the Execution Court for a decade for recovery of decreetal amount. 8. Finally, I do not find any illegality in the impugned order. The learned Execution Court rightly rejected the objection petition of RFC hence there is no force in the appeal and same is hereby dismissed. Parties are left to their own cost. Record of case be remitted forthwith to the Execution Court.