R.P.A.
Valliammal Vs. R. Palanichami Nadar & Ors [1997] INSC 110 (3 February 1997)
K.
RAMASWAMY, G.T. NANAVATI
ACT:
HEAD NOTE:
O R D E
R
Delay
condoned.
This
special leave petition has been filed against the judgment of the High Court of
Madras, made on May 7,
1996 in CRP No. 46-96.
Admittedly, the petitioner's mother had filed an application under Order XXI,
Rule 64, CPC to set aside the execution of sale of two items of properties. The
petition ultimately came to be dismissed and became final.
After he
demise, the petitioner filed application under Section 47 of the CPC contending
that the property could not be brought to sale for several reasons. In the High
Court, one of the grounds raised was that the properties were sold for a
grossly inadequate price and sale of both the properties was excessive
execution. It was stated that the decree was only for a sum of Rs. 10,000/-
while two properties valuing Rs. 40,000/- and another Rs. 1,00,000/- have been
brought to sale and, therefore, they are in excess of the decree in execution.
The High Court has negative the contention on the ground that since the title
of the petitioner had been negatived on earlier occasion and had become final,
it could not be gone into for the third occasion Even though the petitioner had
one-sixth share, as contended, in view of the prohibition contained under Order
21, Rule 93, CPC and since objection in respect of the excessive execution was
not raised before the proclamation was settled the objection cannot be
countenanced. Shri B. Kanta Rao, learned counsel for the petitioner contends
that in view of Section 47 of the CPC, the petitioner is entitled to raise the
objection at any stage and, therefore, the view taken by the High Court is not
correct in law. We find no force in the contention. Section 47 postulates that
all questions arising between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution, discharge or
satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit. Explanation 1 added thereto by Amendment
Act, 1976 postulates that for the purposes of this section, a plaintiff whose
suit has been dismissed and a defendant against whom a suit has been dismissed,
are parties to the suit. The opportunity to object to executability of the
decree could be taken only once and repeated applications appear to be
unwarranted. It is not in dispute that petitioner's mother had already agitated
the right title to the property and claimed that to the extent of her right,
the execution was not valid in law.
That
right having been negatived and become final, the petitioner cannot have any
higher right than the mother herself had. The petitioner having allowed the
orders to become final, it would not be open to the petition to raise the
contentions thereafter. Even otherwise also, as held by the High Court, the
objection as to excess execution has not been raised. Though Order 21, Rule
90(3), CPC may not be strictly construed so as to the put a fetter on the
Court, due to non-raising of the objection before proclamation of sale and the
objection could be raised even at a later stage, but since the title has
already been lost and has become final, the petitioner cannot agitate the executability
of the decree in the absence of any legal title to question the correctness of
the execution. Under these circumstances, we do not think that we would be
justified to exercise the power under Article 136 of the Constitution.
The
special leave petition is accordingly dismissed.
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