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2018 DIGILAW 132 (MP)

Bhanu Shankar Raikwar v. Vijay Shankar Raikwar

2018-02-01

VIJAY KUMAR SHUKLA

body2018
ORDER : 1. The present revision filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’) takes exception to the order dated 10.05.2016 passed by the learned XII Additional District Judge, Jabalpur in Execution Case No. 56-A/99 Vijay Shankar Raikwar vs. Ravi Shankar and Others whereby the learned Court below has rejected the application filed by the applicant under Section 47 read with Order 21 Rule 90 of the CPC. 2. The factual expose adumbrated in a nutshell are that the respondent/plaintiff Vijay Shankar Rai filed a suit for partition claiming 1/5th share in the suit property and also for obtaining possession of his share against the respondents-Ravi Shankar, Bhanu Shankar, Vijay Shankar, Smt. Manorama and Smt. Madhubala arraying them as parties. The said suit was decreed by the learned trial Court on 4.02.2002. After passing of the preliminary decree when a decree for partition was put to execution, a Commissioner was appointed, but the property in question could not be partitioned. The Commissioner submitted a report to the Court to the effect that it is not possible to partition 1/5th share and to deliver separation of the suit property to the plaintiff. Eventually, the disputed property was firstly attached and thereafter put for sale by way of auction. 3. After the property in question was auctioned, the present applicants had filed objection under Order 21 Rules 89 and 90 of the CPC to set aside the auction sale. The said objection was rejected by the Executing Court by order dated 18.7.2011. Against the said order, an appeal was preferred before this Court which was registered as M.A. No. 4455/2011 and the same was dismissed by order dated 22.11.2012. 4. The order passed in the appeal was challenged before the Apex Court by filing an SLP which also faced dismissal by order dated 15.4.2014. 5. Thereafter, again an application under Section 47 read with Order 21 Rule 90 of the CPC was filed in the execution case, challenging the auction of the property in question and raising an objection that the said auction be not confirmed. 5. Thereafter, again an application under Section 47 read with Order 21 Rule 90 of the CPC was filed in the execution case, challenging the auction of the property in question and raising an objection that the said auction be not confirmed. By the impugned order the said application has been rejected on the ground that the applicants had raised the same objection in the previous applications which were dismissed by this Court in M.A. No. 4455/2011 by order dated 22.11.2012 and the SLP was also dismissed by the Supreme Court. Therefore, the application is barred by the principle of constructive res judicata and the applicants are estopped from challenging the auction again. 6. Counsel appearing for the applicants submitted that the auction could not have been held, as in s case of partition decree, the decree cannot be executed by attachment of the property in question and the same cannot be sold by auction. He strenuously urged that the entire sale of the property was a nullity, as no notice was served as envisaged under Order 21 Rule 54(1-A) CPC in Appendix and Forms 24 and 29. It is vehemently urged by him that valuation of the property was also not done as per proviso to sub-rule (2) of Rule 26 and Order 21 of the CPC, therefore, the auction without valuation of the property was also bad in law. It is contended by him that the provisions of Rules 205 and 208 of the M.P. Civil Courts Rules and Orders have not been followed before the auction was held. It is put-forth by the learned counsel for the applicants that the previous application filed under Order 21 Rule 89 of the CPC was dismissed because the applicants failed to deposit 5% of the auction amount and the validity of the auction has not been examined. It is contended by him that since the auction is nullity, therefore, the principle of res judicata would not apply. 7. To bolster his submissions, learned counsel for the applicants has relied on the judgment of the Supreme Court rendered in the case of Mahakal Automobiles and Another vs. Kishan Swaroop Sharma, (2008) 13 SCC 113 and submitted that if the three conditions mentioned in the auction of the attached property viz. 7. To bolster his submissions, learned counsel for the applicants has relied on the judgment of the Supreme Court rendered in the case of Mahakal Automobiles and Another vs. Kishan Swaroop Sharma, (2008) 13 SCC 113 and submitted that if the three conditions mentioned in the auction of the attached property viz. (a) attachment of the immovable property; (b) proclamation of sale by public auction and (c) sale by public auction are not followed, then the said auction has to be treated as nullity. It is further contended that since the auction sale was a nullity, therefore, the subsequent application is sustainable. It is vehemently urged by him that the principle of res judicata would not apply in the execution proceeding, in view of the provisions of Order 21 Rules 89 and 90 of the CPC, being the different provisions. The previous application was filed under Order 21 Rule 89 and not Rule 90 of the CPC. 8. Combating the aforesaid submissions counsel for the non-applicants submitted that the applicants have raised all the points in the previous application. The application was not filed under Order 21 Rule 89 of the CPC only but the same was filed also under Order 21 Rule 90. It is further contended by him that the points were raised in the Misc. Appeal as well as SLP before the Apex Court. Since the objection of the applicants has been considered and decided and the Misc. Appeal and SLP have been dismissed, therefore, the same objection cannot be reiterated time and again. He further submitted that the applicants are the judgment-debtors and they are adopting dilatory tactics in the matter in respect of confirmation of sale. The sale has already taken place on 31st March 2011 and he has also deposited auction amount, but the same could not be confirmed because of interim order passed by this Court. 9. To appreciate the rival submissions raised at the Bar, it is apposite to refer the first point raised in the case – that whether the principle of res judicata would apply in execution proceedings or not. 10. In the case of Fatimabi W/o Noor Mohammad and Others vs. Mt. 9. To appreciate the rival submissions raised at the Bar, it is apposite to refer the first point raised in the case – that whether the principle of res judicata would apply in execution proceedings or not. 10. In the case of Fatimabi W/o Noor Mohammad and Others vs. Mt. Tukobai W/o Kesheo Wani and Others, AIR (32) 1945 Nagpur 95, the Court held that the execution proceedings are a continuance of a suit and a next friend or guardian, after a decree is passed, cannot enter into a compromise or an adjustment of the decree without the sanction of the Court. A specific question was framed for consideration before the Full Bench of the Patna High Court regarding extent, scope and applicability of doctrine of res judicata in execution cases. In the case of Baijnath Prasad Sah vs. Ramphal Sahni and Another, AIR 1962 Patna 72, in a majority view Justice Untwalia authored that the principle of constructive res judicata would apply to execution proceedings. In a similar situation, it was held that if the plea of transaction being void, not raised by the party at proper stage, the party will be barred from raising the plea subsequently under the principle of constructive res judicata under Section 11 of the CPC. The relevant portion of the said judgment is extracted hereunder: “The doctrine of res judicata is very much wider in scope than Section 11. It applies to execution proceedings. If a party takes an objection at a certain stage of a proceeding and does not make another objection which it might and ought to have taken at the same stage, it must be deemed the Court has adjudicated upon the other objection also and has held against it. This principle of constructive res judicata has been extended further. If a party has knowledge of a proceeding, and having had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently, if the Court passes an order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the party and decided against it. Though a transaction is void if a certain provision of law applies, it is for the court to decide whether that provision is applicable. Though a transaction is void if a certain provision of law applies, it is for the court to decide whether that provision is applicable. Once a competent court has given a decision, holding expressly or by implication, that provision of law is inapplicable and the transaction is not void, that decision operates as res judicata between the parties. So also if an order of the court is deemed to have decided the question, the order is binding upon the parties.” (Quoted from the placitum) 11. The above Full Bench decision has been further followed by a Division Bench of the Patna High Court in the case of Ramrup Rai vs. Mst. Gheodhari Kuer and Others, AIR 1980 Patna 197, wherein it is held that in spite of service of notice, the judgment-debtor fails to raise an objection which he might and ought to have raised at that stage, the Court in passing the order for execution of the decree must be deemed to have decided the objection against him. Ordinarily the court does not pass an express order to the effect that the decree be executed. That order is implied in the order for the issue of attachment. The relevant portion of para 7 of the judgment is reproduced hereunder: “If in spite of service of notice, the judgment-debtor fails to raise an objection which he might and ought to have raised at that stage, the Court in passing the order for execution of the decree must be deemed to have decided the objection against him. Ordinarily the court does not pass an express order to the effect that the decree be executed. That order is implied in the order for the issue of attachment. AIR 1962 Pat 72 .” Thus, it is held that the principle of res judicata would apply in the execution proceedings. 12. Before adverting to consider the second issue raised by the counsel appearing for the applicants that in a case of nullity, the principle of constructive res judicata would not apply, I think it apt to refer certain paras from the pleadings. In the present case, the first objection was filed by the applicants on 11-5-2010. On a bare perusal of the objection it is found that the application was filed under Order 21 Rules 89 and 90 of the CPC read with Section 151 of the CPC. In the present case, the first objection was filed by the applicants on 11-5-2010. On a bare perusal of the objection it is found that the application was filed under Order 21 Rules 89 and 90 of the CPC read with Section 151 of the CPC. Paras 1 to 3 of the said application are reproduced hereunder: ^^¼1½ ;g fd izdj.k esa fookfnr laifRr Cykd uacj 79] IykV uacj 1028 ,fj;k 1128 oxZQqV esa fufeZr Hkou edku uacj 274] jkeeuksgj yksfg;k okMZ tcyiqj ,oa Hkw[k.M [kljk uacj 74] ,fj;k 4715 oxZQqV fLFkr edku uacj 184] dLrwjk xka/kh okMZ tcyiqj dks uhyke djus dk vkns'k ekuuh; U;k;ky; }kjk fd;k x;k Fkk rFkk lsyvehu dks ekSds ij fnukad 30-03-2011 dks 11 cts mDr laifRr dks uhyke djus dk vkns'k fn;k x;k FkkA ¼2½ ;g fd U;k;ky; }kjk mDr nksuksa en;wu fMØhx.k dks Hkh uhykeh esa Hkkx yuss dk vf/kdkj fn;k x;k FkkA ¼3½ ;g fd uhykeh dh dk;Zokgh ds lca/k esa lsyvehu }kjk dsoy edku uacj 274] jkeeuksgj yksfg;k okMZ tcyiqj ds lca/k esa uhykeh dh dk;Zokgh dk fooj.k is'k fd;k x;k gS ,oa ;g crk;k x;k gS fd Jhefr vatw ;kno ifr Jh lat; ;kno fuoklh&290] dejpkSd tcyiqj us lcls vf/kd cksyh yxkbZ rFkk muds uke ij cksyh [kRe dh xbZ gS mudh cksyh :i;s 28]01]100@& vadu vBkbZl yk[k X;kjg lkS crkbZ xbZ gSA** 13. The objection of the applicants has been mentioned in the first para of the order dated 18.7.2011 passed by the Executing Court. In the appeal also, this Court has considered various objections raised by the applicants that in case of a decree for partition, there is no judgment-debtor and also in para 11 of the order, this Court has considered the application filed under Order 21 Rules 89 and 90 of the CPC. 14. A copy of the SLP along with the order passed thereon by the Apex Court has also been placed on record by the respondents and attention of this Court was drawn to para 2.4 of the application. The same being relevant for the present purpose, is reproduced hereunder: “2.4. 14. A copy of the SLP along with the order passed thereon by the Apex Court has also been placed on record by the respondents and attention of this Court was drawn to para 2.4 of the application. The same being relevant for the present purpose, is reproduced hereunder: “2.4. Whether the Hon’ble High Court was justified in upholding the dismissal of an application filed by the Petitioner under Order 21 Rule 89 and 90 of the Code of Civil Procedure seeking setting aside of the auction sale on the ground of material irregularity and fraud on the ground of non payment of 5% of the purchase money?” 15. Thus, on a bare perusal of the record and on scanning of the pleadings made in the application, order passed and the SLP filed before the Apex Court, it is graphically clear that the applicants have raised objections under Order 21 Rules 89 and 90 of the CPC. The objection was rejected by the Trial Court by order dated 18.7.2011 and thereafter appeal filed before this Court was also dismissed vide order passed in M.A. No. 4455/2011, dated 22.11.2012. The applicants also visited to the Apex Court in an SLP, which also stood dismissed on 15.4.2014. Therefore, the contention of the applicants cannot be examined at this stage, that the auction in question was not in conformity with the conditions laid down in the case of Mahakal Automobiles & another (supra). 16. In view of the obtaining factual matrix, I am of the considered view that the objection being raised by the applicants in a subsequent application on same set of facts, under Order 21 Rule 90 of the CPC is barred by the principle of constructive res judicata. Even if the same objections have not been decided expressly in the previous round of litigation, the same shall be deemed to be barred by the principle of constructive res judicata. Even an illegal order is binging on the parties. This view of mine gets fortified by the judgment passed by the Hon’ble Supreme Court in the case of Mohanlal Goenka vs. Benoy Kishna Mukherjee and Others, AIR 1953 SC 65 where the Apex Court held that if an objection was raised but was not decided by the Executing Court, yet it was held that it was a res judicata by reason of explanation (4) to Section 11 of the CPC. 17. 17. In the case of Baijnath Prasad Sah (supra) the Full Bench of Patna High Court held that if the judgment-debtor fails to raise an objection which he ought to have raised, the Court passing the order for execution of the decree must be deemed to have decided all the objections. 18. A Division Bench of this Court in the case of Piarelal Khuman vs. Bjhagwati Prasad Kanhayalal and Others, AIR 1969 MP 35 relying on the principles laid down in the cases of Mohanlal Goenka (supra) and Baijnath Prasad Sah (supra), reiterated the same law in the following terms: “30. Turning now to the case of those judgment-debtors who did not object to the proceedings in execution, the contention is that they are not bound by the decision of the executing court. It is clear from the cases cited earlier that the rule of constructive res judicata applies to execution proceedings also and a plea on which the judgment-debtors could have objected to the execution cannot later be raised if there is omission to raise it at the proper occasion. We may only refer to Mohanlal Goenka’s Case, AIR 1953 SC 65 (supra) in which an objection was raised but was not decided by the executing Court and yet it was held that it was res judicata by reason of Explanation 4 to Section 11 of the CPC. In the case of Baijnath Prasad Sah (supra), no objection was raised by the judgment-debtor but it was held that as the Court proceeded with execution, the point impliedly decided and the judgment-debtor could not raise it later.” 19. Considering the facts, circumstances of the case in proper perspective and in view of the enunciation of law governing the field, the instant revision sans substance, deserves to and is hereby dismissed. However, there shall be no order as to costs.