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Damodar Das Vs. Gadadhar Mallik and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 286 of 1979
Judge
Reported inAIR1982Ori234; 54(1982)CLT245
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47 - Order 9, Rule 13 - Order 21, Rules 22, 54 and 90
AppellantDamodar Das
RespondentGadadhar Mallik and ors.
Appellant AdvocateM. Patra and ;B.K. Dagara, Advs.
Respondent AdvocateP.K. Dhal, ;S.C. Sahoo and ;R. Ch. Mohanty, Advs.
DispositionRevision allowed
Cases ReferredBhagaban Devata v. Mahadev Devata
Excerpt:
.....assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1 failed in his attempts to get the ex parte decree set aside. made after delivery of possession is clearly barred by res judicata......by passing an order for sale of the properties. the next stages are proclamation of sale, sale and confirmation of sale. o.p. no. 1 did not file objection at any stage of the execution proceedings. about three and half years after the court delivered possession of the properties to the decree-holder, he filed the objection under section 47, c.p.c. in the circumstances stated above, it must be held that the court had decided that the execution case should proceed against the judgment-debtor and that the properties were liable to attachment and sale. after delivery of possession of the properties a judgment-debtor cannot be heard to say that the properties attached and brought to sale were not liable to attachment and sale. as indicated earlier, o.p. no. 1 failed in his.....
Judgment:
ORDER

P.K. Mohanti, Ag. C.J.

1. This Civil Revision is directed against an order of the Executing Court allowing the judgment-debtor's objection under Section 47 of the Code of Civil Procedure.

2. The facts giving rise to this Civil Revision may be briefly stated as follows :

The petitioner as plaintiff brought Money Suit No 231 of 1970 for recovery of money on the foot of a hand-note executed by O.P. No. 2 Pitambar Mallick as karta and manager of a joint family consisting of himself and his two brothers Gadadhar and Dusasan (O.P. Nos. 1 and 3 respectively). Pitambar. Gadadhar and Dusasan were impleaded in the suit as -defendants 1, 2 and 3 respectively. On 28-10-70, defendant No. 1 entered appearance in the suit and prayed for time to file his written statement, After taking several adjournments, he did not file any written statement and was set ex parte. Defendants 2 and 3 didnot enter appearance despite service of notice. The suit was decreed ex parte on 23-7-71. Defendant No. 1 filed an application under Order 9, Rule 13, C.P.C. which was dismissed on 22-7-72. An appeal carried against the order of dismissal was dismissed on 25-7-73. A Civil Revision was carried against the appellate order and it was dismissed on 27-11-1973. The petitioner-decree-holder had levied execution of the decree in Execution Case No. 65/72. Notices under O. 21, Rule 22, C.P.C. were served, attachment made, sale proclamation followed and sale held on 15-9-73 was confirmed on 29-10-73. On 23-12-73, a writ of delivery of possession was issued under Order 21, Rule 95, C.P.C. and on 31-12-73 possession was delivered.

3. On 10th January, 1974, defendant No. 2 (O.P. No. 1 here) filed an application under Order 9, Rule 13, C.P.C. for setting aside the ex parte decree on the 'ground of fraudulent suppression of suit summons. The application was allowed an 4-3-76 and the decree was set aside. The petitioner carried a Civil Revision, which was allowed on 27-1-77 and the order of the learned Munsif allowing, the application under Order 9, Rule 13, C.P.C. was set aside. Then defendant No. 3 filed Title Suit No. 72/77 to set aside the decree and the same was dismissed. Thereafter on 11-5-77, defendant No. 2 (O.P. No. 1 here) came up with an application under Section 47, C.P.C. challenging the sale as null and void arid praying for confirmation of his possession or in the alternative recovery of possession. His allegations were that there was fraudulent suppression of summons, notices and other processes in, the original suit and the execution case and that he was totally ignorant about the suit and the execution proceeding till 12-4-77 when the petitioner threatened to dispossess him from his lands. It was alleged that the properties sold in execution of the decree were his self-acquired properties and defendant No. 1 who executed the suit hand-note had no interest therein. The petitioner filed counter-contending that, the objection under Section 47, C.P.C. was barred by res judicata. The executing Court having allowed the application under Section 47, C.P.C. the petitioner has come up in revision.

4. It is urged on behalf of the petitioner that the objection under Section 47,C.P.C. was barred by res judicata.

5. Explanation VII to Section 11, C.P.C., as, inserted by C.P.C. Amendment Act, 1976, specifically enacts that the rule of res judicata applies to execution proceedings. Even before this amendment the principle of res judicata was applicable to execution proceedings. In a proceeding for execution of a money decree by attachment and sale of the judgment-debtor's immovable properties, a notice under Order 21, R. 22. C.P.C. is issued to the judgment-debtor requiring him to show cause why the deeree should not be executed against him. On receiving the notice the judgment-debtor has to raise all his objections to the executability of the decree. If at this stage, he fails to raise any objection which he might and ought to have raised the Court in passing the orders for execution of the decree is deemed to have decided the objection against him. Next stage is one when the Court directs attachment of the judgment-debtor's properties under Order 21, Rule 54, C.P.C. Any objection on the ground of non-saleability of the proper ties must be raised at that stage. If no such objection is raised, the Court must be deemed to have decided it against the judgment-debtor by passing an order for sale of the properties. The next stages are proclamation of sale, sale and confirmation of sale. O.P. No. 1 did not file objection at any stage of the execution proceedings. About three and half years after the Court delivered possession of the properties to the decree-holder, he filed the objection under Section 47, C.P.C. In the circumstances stated above, it must be held that the Court had decided that the execution case should proceed against the judgment-debtor and that the properties were liable to attachment and sale. After delivery of possession of the properties a judgment-debtor cannot be heard to say that the properties attached and brought to sale were not liable to attachment and sale. As indicated earlier, O.P. No. 1 failed in his attempts to get the ex parte decree set aside. He was fully aware of the execution proceedings started against him. Fraudulent suppression of sale-proclamation would be a ground for assailing the sale under Order 21, Rule 90, C.P.C. It was alleged that the properties sold in execution of the decree were the self-acquired properties of O.P. No. 1 and they are not liable to attachment and sale for realisation of the decretaldues. This is a ground which should have been taken before the sale was held. No such objections were taken fill after the Court delivered possession of the properties to the decree-holder-auction purchaser. The objection under Section 47, C.P.C. made after delivery of possession is clearly barred by res Judicata.

6. Section 47, C.P.C. can be invoked only in cases where the sale is void and not merely voidable. Non-proclamation of sale is a material irregularity in the conduct of sale and does not affect the Court's jurisdiction in the matter so as to render the sale null and void. If a person feels aggrieved by an execution sale on the ground of material irregularity causing substantial injury to him, then he has to file an application under Order 21, Rule 90, C.P.C. and not an application under Section 47, C.P.C. This view is fortified by a decision of this Court in the case of Bhagaban Devata v. Mahadev Devata, AIR 1977 Orissa 51. The executing Court acted in illegal exercise of its jurisdiction by allowing the objections of the present nature in a proceeding under Section 47, C.P.C.

7. The result, therefore, is that the Civil Revision is allowed with costs and the impugned order is set aside.


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