TaxTMI 
TaxTMI 
1997 (12) TMI 663
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....s. A decree was passed in favour of the Bank and against the defendants in the suit on 7-4-1976. Having failed to recover its dues the decree holder-Bank filed an execution application on 12-8-1976 and after following the due process the property was put to auction on 15-6-1979. The property was auctioned for a sum of ₹ 1,90,000/-. Objections to this were filed by the decree-holder as well as by the judgment-debtors which were dismissed by the executing Court. The objector-judgment debtor had preferred an appeal before the High Court in which the order of the executing Court was set aside and the matter was remanded for trying the objections after framing issues and affording opportunities to the parties to lead evidence. In furtherance to the orders of the High Court, issues were framed by the executing Court and the same were dismissed. Sale certificate was issued in favour of the auction purchaser qua the property in dispute. 3. Again the matter was taken up by the decree-holder-Bank before the Supreme Court. The special leave petition preferred by the Bank was disposed of vide order of the Honble Apex Court on 1-12-1994. This order of the Honble Supreme Court has been re....
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....evision was dismissed vide order dated 26-3-1996 and the relevant part of the order dismissing the civil revision reads as under :- "Thus, as the auction-purchaser complied with all the directions of the Apex Court given in both the orders dated December 1, 1994, and November 24, 1995, the auction-purchaser is now entitled to get the sale certificate issued in his favour and also to get the possession of the said property. Consequently, in my considered view, there is no merit in this revision, which is hereby dismissed with costs, which are quantified at ₹ 2,000/- to be paid to the auction-purchaser." 6. Against this order the objector-judgment debtor had preferred a special leave petition before the Honble Supreme Court of India, which was dismissed vide order dated 17-4-1997, which reads as under :- "The special leave petition is dismissed." 7. After the dismissal of the Special Leave Petition the objector-judgment debtor filed objections under S. 47 of the Civil Procedure Code before the learned executing Court. These objections were dismissed vide order dated 31-7-1996 which has been impugned in the present revision petition. 8. Notice of this ....
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....certificate is defective in law. 11. On the other hand, the learned counsel Mr. Arun Jain appearing for the auction-purchaser while repelling these arguments on merits supported the impugned order passed by the learned trial Court. In addition, an argument by way of preliminary objections has been raised with regard to the maintainability of the present revision petition and the objections filed before the executing Court that they are barred by the pri-nciples of res judicata and/or constructive res judicata. Raising vehement submissions the learned counsel Mr. A.M. Punchhi argued that in every case the executing Court is expected to grant permission to the objector to lead evidence specially when the plea of fraud, forgery, collusion and material controversy with regard to other facts has been raised in the objection petition like the present one. It is also argued that an application dated 25-5-1996 was filed by the objector praying before the learned executing Court that the objector be permitted to lead evidence. That application is stated to be pending as of today though the main objection petition has been disposed of. Emphasis was also placed upon the observations made by ....
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....s only the execution of the said order, subject to the limitations imposed therein, that was required to be concluded between the parties .........by the executing Court. 14. A necessary corollary to this view is whether the order of the Honble Supreme Court of India dated 1-12-1994 had been complied with or not. In this regard reference has to be made to the order dated 24-11-1995 wherein in spite of other proceedings being pending before the executing Court and even the High Court, the Honble Supreme Court in presence of parties had granted extension of time to the auction purchaser to deposit the remaining amount of ₹ 1,00,500/- within a period of one month from the date of the order, in the executing Court. There is also no dispute to the fact that this amount was deposited within the extended period. Vide order dated 1-12-1994 the Honble Supreme Court had directed the auction-purchaser to pay a sum of Rs. fifteen lakhs to the Bank in full and final settlement of the liability of the Bank and pay a further sum of rupees five lakhs to the judgment-debtor and a sum of rupees three lakhs which had been withdrawn by the judgment-debtor from the rent deposited in the Court wa....
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....a copy of the application which the auction-purchaser filed on March 8, 1995, under which he wanted to deposit additional sum of ₹ 72,000/-. In this petition it is specifically mentioned :- "The finding of the executing Court that there is collusion between the auction purchaser and the treasury officials is merely conjectural and based on no evidence." Thus, the executing Courts order dated October 12, 1995, was specifically assailed before the Apex Court and in this context it is also relevant to mention that the auction-purchaser gave an undertaking before the Apex Court that he will withdraw his appeal which is pending in the District Court against the executing Courts order dated October 12, 1995, and accordingly the Apex Court itself dismissed that appeal as withdrawn. Had this fact of the deposit of ₹ 72,000/- on Feb. 28, 1995, not been taken into consideration by the Apex Court, there was no question of asking the auction-purchaser to withdraw his appeal, where in the executing Courts order Annexure P-1 dated October 12, 1995, was assailed." After making the above findings the learned Judge concluded, as already noticed supra, that auction pu....
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....ebtor. As already noticed, this contention was specifically raised before the executing court, this Court and in the Special Leave Petition preferred by the objector-judgment debtor, before the Honble Supreme Court. Copy of the Special Leave Petition, which was dismissed vide order dated 17-4-1996 has been placed on this file as Annexure R/6. All the pleas which are sought to be raised now were raised before the Honble Apex Court and even earlier in various proceedings before the executing Court and this Court. There is no justification for this submission that the learned executing Court ought to have permitted the objector to lead evidence on this score. 18. It is settled principle of law that it is not incumbent upon the executing Court that it must put to trial every objections which are filed in any execution proceedings, even if prima facie they appear to be frivolous, vaxatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of the Court. In this regard reference can be made to a judgment of this Court in Execution Second Appeal No. 2333 of 1996, Bhagwan Singh v. Parkash Chand, decided on 7-11-19....
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.... Constitution of India does not amount to an order under the provisions of the order 21, rules 92 to 94 of the code and is a mere private sale which cannot attract the relevant provisions of the Code. This contention needs to be rejected at the out-set. Firstly, the order of attachment, sale, confirmation of sale and issuance of sale-certificate, all have been passed by the learned executing Court while exercising its powers under various rules of order 21 of the code. further more, art. 142 of the constitution of india vests in the Honble Supreme Court widest powers to do complete justice between the parties and all other powers under various procedures can no way affect or curtails the powers of the Supreme Court. This contention need not detain me any further as all Courts including this Court are bound by the orders passed by the Supreme Court and its interpretation would not be open to this Court, specially in the facts and circumstances of the present case. There was a conclusive sale in favour of the auction-purchaser in terms of the order dated 1-12-1994, which stands fully complied with as per the findings of all the Courts and duly up-held by the Honble Supreme Court. 22....
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....or satisfy the existing decrees but that its terms merely provide a mode of executing the two decrees." "For the reasons I have mentioned, I find that the compromise in these cases concerned the mode of executing the two decrees and was intended to be enforced by the executing Courts and it is in law capable of being so enforced." 25. This brings the Court to discuss the preliminary objection in regard to the petition being barred by the principles of res judicata raised by the respondent herein. The learned counsel for the respondent relied upon the cases of Mahboob Sahab v. Syed Ismail, 1995 (2) Rec. Rev. R 274 : Sulochna Amma v. Narayanan Nair, 1993 (3) Rec. Rev. R 683 : (AIR 1994 SC 152), State of Uttar Pradesh v. Nawab Hussain, AIR 1977 SC 1680 : (1977 Lab IC 911) and Y. B. Patil v. Y. L. Patil, AIR 1977 SC 892 : (1977 Cri LJ 549) to argue that all the pleas now sought to be raised were actually raised or would be deemed to have been raised and having been rejected in the previous proceedings, the present petition is barred by the principle of res judicata and constructive res judicata as well. On the other hand, learned counsel for the petitioner has relied ....
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....it was also stated that the order dated 1-12-1994 pased by the Apex Court had not been adhered to by the auction-purchaser. All these contentions were not accepted by the Honble Supreme Court of India and the Special Leave Petition was dismissed. 28. The plea raised on behalf of the petitioner that pendency of the application for framing of issues and leading evidence renders the order liable to attack, is equally ill-founded. As already discussed, nothing substantial and material has been brought before the Court which could be termed as a fact bonafidely pleaded which ought to be proved by leading evidence. The doubt cast on the validity of the treasury challans and allegation of interpolation thereto were rightly rejected by the executing Court. The learned Executing Court in its order dated 29-1-1996 has specifically noticed that official from the treasury was summoned and all records were produced before the Court. After examining this point in some elucidation the plea was rejected by the Court. In these circumstances the pendency of the application has caused no prejudice to the judgment-debtor. 29. The dismissal of the writ petition and withdrawal of the appeal by the auc....
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....also the principle of res judicata on that issue is directly applicable. Here, it may be appropriate to make a reference to the judgment of the Supreme Court in the case of Mohan Lal v. Kartar Singh, 1995 (7) JT (SC) 573 : (1995 AIR SCW 4579) where the Court held as under at page 4585 (of AIR SCW) :- "In view of the bar contained in Section 47(1) the Civil Court had no jurisdiction to consider the same. It is, therefore, not necessary to consider the alternate contention that the decision of the Collector operated as res judicata in view of Explanation VIII to Section 11 and to refer to the decision of this Court in Sulochana Amma v. Narayana Nair, 1993 (5) JT (SC) 448 : (AIR 1994 SC 152) wherein it is held that an order or an issue which had arisen directly or substantially between the parties or their privies and decided finally by a competent court or tribunal, though of limited or special jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such court of limited or special jurisdiction was not a competent court to try the subsequent suit." 33. Explanation VII to section 11 of the code of civil procedure by civ....
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....to house-break, trespass and theft etc. against the judgment-debtor Sat Pal Gandhi and others. The factum of the premises being on lease was not disputed before me nor could have been disputed. Whatever rights or title along with possession that the judgment-debtor had, were transferred to the auction-purchaser. All rights of the judgment-debtor in its various capacities in regard to the property in question stood finally merged and conveyed vide order dated 1-12-1994 to the auction-purchaser, as all Courts have held that order dated 1-12-1994 had been complied with in entirety. This finding of the Courts below stood affirmed by the judgment of the Supreme Court itself. Consequently, and while making a reference to the judgment of the Supreme Court in the case of Shri Jangli v. Smt. Bhagwati, 1995 (6) JT (SC) 679, even this contention of the objector is liable to be rejected. 36. The manner in which the auction was held and any objection with regard to its valuation and alleged violation also stood finally settled vide order dated 1-12-1994. The entire property was put to auction and the sale certificate in this regard must be construed properly while giving it a meaningful meanin....