Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
PETITIONER:
R.P.A. VALLIAMMAL
Vs.
RESPONDENT:
R. PALANICHAMI NADAR & ORS.
DATE OF JUDGMENT: 03/02/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
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.