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K.H. Kapiniah Vs. Fatimabi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 399 of 1950-51
Judge
Reported inAIR1954Kant41; AIR1954Mys41
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 - Order 21, Rule 22 - Order 34, Rule 6
AppellantK.H. Kapiniah
RespondentFatimabi
Appellant AdvocateG.R. Ethirajulu Naidu, Adv.
Respondent AdvocateK.R. Gopivallabha Iyengar, Adv.
Excerpt:
.....he had at the time of attachment and sale, but he has failed to do so. even in respect of a failure to take notice under order 21, rule 22, which goes to the root of the jurisdiction of the executing court, a judgment-debtor may be barred from taking the objection by principles of res judicata. but was served subsequently in the execution case and failed to take the objection of his not having been served with notice under order 21, rule 22. cannot be allowed to take that objection at a later stage. ' i may also refer to the decision in -42 mys hcr 190 (b)' relied on in the above case as an authority for holding that a judgment-debtor who could have taken an objection at an earlier stage in execution proceedings, but had failed to do so is prevented by principles of res resjudicata from..........a final decree against one peer sab on the foot of a hypothecation deed and thereafter filed an execution application for attachment and sale of the property now in dispute. he sought to proceed against it, though it was not one of the hypothecated properties, as the hypothecated properties had all been sold in execution of a decree obtained by a previous hypothecatee. the judgment-debtor was served with a notice, and it is clearly noted in the order-sheet that he had no objection to the attachment. property was thereafter sold and the sale was confirmed on 9-1-1948. the respondent, who claims to be the widow of the judgment-debtor, states that a sale deed has been executed by him in her favour on 6-5-1948, which is long after the property was sold in execution of the decree against.....
Judgment:

1. The appellant obtained a final decree against one Peer Sab on the foot of a hypothecation deed and thereafter filed an execution application for attachment and sale of the property now in dispute. He sought to proceed against it, though it was not one of the hypothecated properties, as the hypothecated properties had all been sold in execution of a decree obtained by a previous hypothecatee. The judgment-debtor was served with a notice, and it is clearly noted in the order-sheet that he had no objection to the attachment. Property was thereafter sold and the sale was confirmed on 9-1-1948. The respondent, who claims to be the widow of the judgment-debtor, states that a sale deed has been executed by him in her favour on 6-5-1948, which is long after the property was sold in execution of the decree against him. Her contention is that as no personal decree was obtained, the sale is invalid.

2. Her application to set aside the sale has been filed on 7-7-1943. It is difficult to see how such a belated application is maintainable, though the judgment-debtor himself did not file any such application while he was alive within time allowed by law. Moreover, it has to be noticed that the application is barred by principles of res judicata. The judgment-debtor was served with a notice in the execution case when the property was sought to be attached and sold. It was up to the judgment-debtor to have raised any objection he had at the time of attachment and sale, but he has failed to do so. It is, therefore, not open to him or to any other person claiming under him to raise me 'point over again. Even in respect of a failure to take notice under Order 21, Rule 22, which goes to the root of the jurisdiction of the executing Court, a judgment-debtor may be barred from taking the objection by principles of res judicata. As observed in -- 'Chenne Gowda v. Ven-katachala Setty', AIR 1951 Mys 118 (A):

'There are a large number of decisions which support the view that a person who was not served with a notice under Order 21, Rule 22, Civil P. C. but was served subsequently in the execution case and failed to take the objection of his not having been served with notice under Order 21, Rule 22. cannot be allowed to take that objection at a later stage.'

I may also refer to the decision in -- 42 Mys HCR 190 (B)' relied on in the above case as an authority for holding that a judgment-debtor who could have taken an objection at an earlier stage in execution proceedings, but had failed to do so is prevented by principles of res resjudicata from raising the point over again.

3. Further, the more fact that a personal decree has not been obtained does not necessarily make the sale void. No prejudice is caused to judgment-debtor in such cases when the decree-holder was entitled to personal decree if he had applied for it as in this case. As observed in -- 'Venkatasamy v. Subba Rao', 18 Mys L J 333 (C) it may be here stated:

'the failure to obtain a formal personal decree under Order 34, Rule C, Civil P. C., did not render the subsequent execution proceedings void and that the sale could not be set aside on that account. The Court which was competent, to grant a personal decree had allowed execution to proceed and had jurisdiction to execute it. An irregularity in procedure in the exercise of its jurisdiction did not vitiate the sale.'

It is therefore clear that both the Courts below were wrong in allowing the application filed by the widow of the judgment-debtor.

4. In the result, this appeal is allowed with costs, and the application filed by the respondent to Set aside the sale stands dismissed with costs.

5. Appeal dismissed.


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