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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