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Radhey Shyam Jaiswal & Ors Vs. Smt. Ram Dulari Devi & Ors [1996] INSC 638 (1 May 1996)

Sen, S.C. (J) Sen, S.C. (J) Punchhi, M.M. Sen. J.

CITATION: JT 1996 (5) 620 1996 SCALE (4)197

ACT:

HEAD NOTE:

Late Hanuman Das filed a suit for recovery of money against Raghunandan Ram and his sons - Mewalal, Misri Lal and Sewa Lal - and his brother Babunandan Ram. In the suit, an order of attachment before judgment was passed in respect of the house now in dispute. The suit was decreed against Raghunandan Ram and his three sons but was dismissed against Babunandan Ram. The decree-holder applied for execution of the decree (execution case No.3 of 1951) by sale of one half share in the disputed house. The sons of Raghunandan Ram filed an objection under Section 47 of Code of Civil Procedure that it is only the share of Raghunandan Ram in the joint family Property which could be sold. The objection was upheld. Hanuman Das went up in appeal to the High Court and contended that the sons were liable for the payment of the father's debt. The entire one half share of the father and of the sons in the ancestral property was liable to be sold in the execution of the decree. The appeal was allowed and it was held that the decree-holder, i.e., Hanuman Das was entitled to proceed against one half share of the house in dispute.

After the decision of the appellate court, execution proceeding commenced once again but Raghunandan Ram died on 9.1.1960. The decree-holder moved an application for striking off the name of Raghunandan Ram of the record and continuing the execution proceedings. It was contended that the heirs of Raghunandan Ram - Newalal, Misri Lal and Sewa Lal were already parties in the proceedings and that it was not necessary to bring them on record as legal representatives. The prayer was allowed by the Civil Judge by passing an order as prayed for after giving a notice of hearing to the sons of Raghunandan Ram.

In the execution case, an order for sale of the half share of the disputed house was made, a proclamation of sale was made and 20.4.1961 was fixed as the date of sale.

However, the sale did not take place because a compromise was arrived at between the sons of Raghunandan Ram and the decree-holder. It was agreed that the sons would pay the whole of the decretal amount in monthly instalments of Rs.500/- each. A sum of Rs.500/- was paid to the decree- holder who was in the court. The sons of Raghunandan Ram were to pay the remainder of the decretal dues in three instalments on 31.5.1961, 30.6.1961 and 31.8.1961. In default of payment of any of these instalments, Hanuman Das was entitled to put the attached house to sale without issuing any further fresh sale proclamation. On this compromise being reached. the Civil Judge passed an order on 31.4.1961 striking off the execution case for the time being.

The judgment-debtors, however, did not pay the instalments. Another application for execution was made on 16.11.1961 (execution case No. 22/1961). In that case, it was prayed that the record of the original case No. 3/1951 be sent for and execution proceeded with in accordance with law in view of the default committed by the judgment- debtors. Pursuant to the said prayer, one half share in the disputed house was put to sale once again and was ultimately sold to one Bhagga Ram on 8.9.1962. The entire purchase price was paid by Bhagga Ram on 17.9.1962.

The case of the appellants who are the sons of the late Bhagga Ram is that they are living in the house since Bhagga Ram purchased the property in the auction sale. To is alleged that the property was in a very bad state and Bhagga Ram had spent large sums of money in the renovation of the house.

The widow and daughters of Raghunandan Ram filed an objection on 11.10.1962 in the court alleging that after the passing of the Indian Succession Act, 1956, the widow and daughters became entitled to the property along with three sons but were not brought on record after the death of Raghunandan Ram and that the sale had taken place behind their back. The omission to implead them went to the root of the jurisdiction of the execution court to sell the property. The sale, therefore, was void ab initio and should be set aside. The objection was upheld by the Civil Judge and by an order dated 8.10.1963 the sale effected on 8.9.1962 pursuant to the order of the execution court was set aside. The auction-purchaser did not prefer any appeal against this order.

However, the decree-holder preferred an appeal to the court of Second Additional Judge, Allahabad who by his order dated 3.10.1964 allowed the appeal and dismissed the objections filed by the objectors with costs. The court held that the widow and the daughter had never put in appearance in the execution case for thirteen years and filed the objections only after the sale had taken place with a view to further delay the execution proceedings. The objections have been filed belatedly to delay the execution proceedings and prevent the decree-holder from getting the benefit of the decree obtained by him.

The widow and the daughters of Raghunandan Ram being aggrieved by the decision of the Additional Judge, preferred an execution second appeal in the High Court of Allahabad.

The High Court allowed the appeal and upheld the objections raised by the widow and the daughters of the judgment-debtor and cancelled the sale of property.

The High Court pointed out that after reserving judgment, it went through the record and discovered that the execution application giving rise to the present proceedings was filed on 16.11.1961 while the order under execution was passed on 29.10.1949. This went to show that there was a delay of eighteen days beyond the limit of twelve years fixed by Section 48 of the Code of Civil Procedure as it stood at that time. He, therefore, directed the case to be fixed for further hearing in order to give the decree-holder and the auction-purchaser an opportunity to meet the point.

The case was, thereafter, taken up for further hearing on the adjourned date. But the decree-holder did not appear. On behalf of the auction-purchaser, a prayer was made for examining the file of the execution case No.3/1951 and No.22/1961. It was contended that the sale had been confirmed during the pendency of the appear and even a certificate of sale had been issued.

The court held that it was unnecessary to call for any of the files inasmuch as the entire file of the execution case in which the sale took place and also the application for execution was available in court. The subsequent papers relating to confirmation of the sale during the pendency of the appeal were not necessary for deciding the questions raised in the appeal.

It was held that Section 48 of the Civil Procedure Code, as it stood at the material time, was a bar to filing any execution application beyond the period of 12 years from the date of passing of the decree. The execution application, which was filed on 16th November, 1961, was for execution of a decree passed on 29th October, 1949.

Therefore, it was clearly beyond the period of 12 years and was barred by limitation. It was recorded in the order "it was not a fresh application for execution within the meaning of that provision". The Court, therefore, passed the following order :

"In the result, the appeal succeeds and is allowed. The appellant's objection under section 47 is allowed. The execution application filed on 16th November, 1961;

Execution Case No. 22 of 1961 in the court of the Civil Judge, Mirzapur, is dismissed. The sale of the property and the confirmation thereof and the sale certificate issued in pursuance thereof and other action taken, stand annulled.

The auction purchaser shall be entitled to refund of the amount paid by him. However, in the circumstances, the parties shall bear their own costs throughout." The decree-holder did not appear at the final hearing.

The auction-purchaser also did not seriously dispute that the application for execution pursuant to which the judgment-debtor's property was sold was beyond the period of twelve years from the date of the decree. In that view of the matter, the Court was right in coming to the conclusion that the fresh application for execution was barred by time in view of the provisions of sub-section (1) (a) of Section 48 of the Civil Procedure Code as it stood at the material time.

It has been argued on behalf of the appellants that the execution proceedings initially taken were compromised and the judgment-debtors had agreed to pay off the decretal does by instalments. There was a failure on the part of the judgment-debtors to pay such instalments and limitation should be computed from the date of the failure. It does not appear from the judgment that this point was urged at all.

On the contrary, the Court after referring to the provisions of Section 48 of Civil Procedure Code, has recorded that "it was not suggested that it was not a fresh application for execution within the meaning of that provision". That being the position, the appellant cannot now be permitted to raise the point which was not even argued in the court below. The court also did not go into the question of the effect of the failure on the part of the decree-holder to bring the widow and daughters of the judgment-debtor on record.

A point was taken by the appellant that considerable improvement to the property was brought about by him.

Therefore, he must be suitably compensated for the improvements brought about by him before the property is allowed to be taken back by the judgment-debtors. As against this, it has to be borne in mind that the case of the appellant-auction purchaser is that immediately after the auction sale, he went into possession of the property and brought about improvements. He has been in possession of the property since then and has enjoyed the use and benefit of this property for a considerable period of time. It appears that on 30.11.1982 an order was passed by the then Chief Justice and V.D.Tulzapurkar, J. directing the Civil and Sessions Judge, Mirzapur, to make a valuation of the improvements made by the auction-puchaser to the property after the date of the purchase on the basis of the current market price. A further direction was given for maintenance of status quo. The District Judge, Mirzapur, sent a report to this Court in which he has stated that improvements made by the auction-purchaser were valued at Rs.86,335/-.

We, therefore, affirm the order dated 8.2.1982 passed by the Allahabad High Court in Execution Second Appeal No.

4267 of 1964 but direct that a further sum of Rs.86,335/- must be paid by the respondents to the appellants. Save as aforesaid, the appeal is dismissed. No order as to costs.

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