Mr.Vaithilinga Asari (Died) vs Mr.Sivapragas Chettiar (Died)

Reserved on : 06.03.2019

Pronounced on : 18.03.2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

CORAM :

THE HONOURABLE MR. JUSTICE N.SATHISH KUMAR

C.R.P. (NPD) No.799 of 2004

1. Mr.Vaithilinga Asari (Died) 2. Mr.V.Gunasekaran 3. Mr.V.Selvaraj 4. Mr.V.Datchanamoorthy (Appellants 2 to 4 and respondents 18 to 20 brought on record as the LRs of the sole appellant vide Court order dated 05.03.2019 made in CMP No. 14414 of 2018 in CRP NPD 799 of 2004 .. Petitioners

Vs.

1. Mr.Sivapragas Chettiar (died) 2. Mrs.Sulachana 3. Mrs. Uma Salimah 4. Mr.Raja Mohammed 5. Ms.Mumtaj 6. Ms.Meherunnissa 7. Ms.Acrose Begum 8. Mr.Sarabuddin 9. Mr.Mohamed Khan 10. Ms. Sakila 11. Ms.Ramila Banu 12. Mr.S.Devaraj 13. Mr.S.Sundaraj 14. Mr.S.Govindaraj 15. Mr.S.Krishnaraj 16. Mr.S.Raman

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17. Mr.S.Lakhsmanan 18. Ms.Susila 19. Ms.Tamilarasi 20. V.Radhakrishnan .. Respondents

PRAYER: Civil Revision Petition filed under Section 115 of Code of Civil

Procedure against the judgment and decree dated 22.09.2003 in C.18 of 1996

on the file of the Principal District Court, Pondicherry allowing the appeal filed

against the Order dated 25.03.1996 in E.A.o.724 of 1983 in E.P.No.260 of 1971

in O.S.No.183 of 1969 on the file of the Principal Sub Court, Pondicherry.

For Petitioners : Mr. R.Venkatesulu

for Ms.Usha Raman

For Respondents : Mr.V.Lakshmi Narayanan

ORDER

Aggrieved over the Order of the first appellate Court setting aside the

Order passed in E.A.No.724 of 1983 in E.A.No.260 of 1971 in O.S.No.183 of

1969, the present revision has been filed. The impugned Order is a result of

challenge made by the judgment debtor in the application in E.A.No.724 of 1987

in E.P.No.260 of 1971 filed under section 47 and Order XXI Rule 85 of Code of

Civil Procedure.

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2. The brief facts leading to filing of the application is as follows :

The respondent/judgment debtor filed an application to declare the public

auction conducted on 16.11.1972 as null and void. According to him, the suit

against him in O.S.No.183 of 1969 filed by one Sulochana is decreed. In

execution of the above decree in E.P.No.260 of 1971, the property was

auctioned on 16.11.1972. The husband of the decree holder namely

Sivapragasa Chettiar, the first respondent bid the property for a sum of

Rs.15,000/- and took delivery of the suit property. The above sale was

confirmed on 31.03.1973. The minor children of the petitioner also challenged

the above public auction separately in E.A.No.364 of 1979 before the Sub Court.

It is the further contention of the revision petitioner that the previous counsel has

not disclosed about the specific fraud committed by the defendant from

16.11.1972. Thereafter, his minor children engaged another advocate. After

that only he came to know that the sale is nullity under Order 21 Rule 85 of Code

of Civil Procedure.

3. It is the further contention of the revision petitioner that the auction

purchaser has not deposited Non Judicial Stamp Papers within 15 days as per

Order 21 Rule 85 and he has sought to extend time for deposit of stamp in

unnumbered E.A. on 13.12.1972 and the said application has been allowed. It is

the contention of the revision petitioner that the Court has no jurisdiction or any

authority under Order 21 Rule 85 Code of Civil Procedure to extend time beyond

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prescribed time of 15 days. The revision petitioner came to know about the said

illegality only in February 1983. Hence, prayed for setting aside the sale dated

16.11.1972.

4. The first respondent, who is the auction purchaser remained exparte.

5. The second respondent, who is a subsequent purchaser, filed counter

stating that he has advanced a loan to the tune of Rs.4000/- on usufructuary

mortgage dated 16.04.1977 to the first respondent subsequent to the above

date. He has also entered into an agreement for sale with the first respondent

for purchase of the property for a sum of Rs.27,500/-. As he has failed to pay

the amount, he filed a suit in O.S.No.200 of 1982 and obtained specific

performance and he became the owner of the property. He is a bonafide

purchaser of the property. It is his further contention that a similar petition has

been filed by the petitioner previously. Hence, the present petition is barred by

resjudicata. The sale has been confirmed on 31.03.1973. This respondent is in

possession of the property from 1977. Further the decree obtained in

O.S.No.200 of 1982 cannot be disputed. In the above suit he is not a party in

the Execution Petition. Hence, prayed for dismissal of this revision.

6. The Execution Court has allowed the application filed by the judgment

debtor on the ground that the stamps have not been deposited within 15 days

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under Order 21 Rule 85 of Code of Civil Procedure. In the appeal, the first

appellate Court allowed the appeal and dismissed the claim application filed by

the judgment debtor. As against which, the present revision has been filed.

7. The learned counsel appearing for the revision petitioner vehemently

contended that Order 21 Rule 85 of Code of Civil Procedure is mandatory and

the Court has to resale the property in event of default. Admittedly, in this case,

though the sale amount has been deposited, stamps have been deposited with a

delay and delay application has also been allowed by the trial Court, despite the

Court had no jurisdiction to extend time for depositing the stamps. Hence,

submitted that when the stamps are not deposited within 15 days, as stipulated

under Order 21 Rule 85, the auction sale is null and void. In support of his

submissions, he has relied upon the judgments reported in 1974

Manilal Mohanlal Shah and Others Vs. Sardar

Sayed Ahmed Sayed Mahamed and others reported in AIR

1954 Supreme Court 349;

Mool Chand Vs. Collector Jalaun and others

reported in AIR 1982 Allahabad 141;

Shilpa Shares and Securities and others Vs. The

National Co-operative Bank Ltd. and Others reported in

AIR 2007 Supreme Court 1874;

http://www.judis.nic.in 6 Kudiyala Ramana Vs. Vattikolla Somaraju and

others reported in 2003 (2) ALD 93 &

Subbammal Vs. P.Gurusamy Thevar and others

reported in AIR 1974 Mad 278

8. The learned counsel appearing for the respondent submitted that the

suit has been filed in the year 1969. The suit is filed under Order 34 of CPC on

the basis of mortgage. The above suit was decreed and the property was sold in

public auction on 16.11.1972 and the sale was confirmed on 31.03.1973. The

judgment debtor has not filed any appeal against the confirmation of the sale

under Order 43 of Code of Civil Procedure. It is his further contention that every

stage in the execution proceedings, a separate Order has been passed.

Therefore, such proceedings operates as resjudicata. Admittedly, the sale

certificate was issued on 05.04.1973 and delivery was effected on 22.12.1973

and the revision filed against the Order of the trial Court extending time was also

dismissed. The suit which has been filed by the revision petitioners' minor sons

in O.S.No.312 of 1971 challenging the sale has also been dismissed. The

appeal filed against the said judgment is also dismissed. The respondent herein

is a bonafide purchaser. He has entered into a contract for sale with the auction

purchaser and filed a suit for specific performance and the above suit has also

been decreed in his favour and he has taken possession of the property. The

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present application has been filed only in the year 1983 by engaging a new

advocate. It is clearly barred by limitation.

9. It is the further contention of the learned counsel for the respondent

that the right of the judgment debtor is extinguished by way of final decree

passed in the mortgage deed and no appeal whatsoever has been filed and he

cannot oppose the sale conducted in the year 1973. It is his further contention

that the sale price has been paid within time. Only stamps have been deposited

with a delay. The said delay has also been condoned, which has reached finality

till this Court. The revision petitioner has not filed any application till the year

1983, When Order 21 Rule 85 was amended, the amended provision restrict

only to the sale price. In Madras amended provision 'stamps' has been

removed. Therefore, on the date of the application, the provision under Order 21

Rule 85 has already been amended. Therefore, on the date on which the

application has been filed under Order 21 Rule 85 stipulates only for purchase

money payable on the 15th day of sale of the property and not deposit of stamps

as stipulated in Madras amendment. Hence, it is his contention that the

petitioner cannot take shelter under the old Act and such claim is barred by

limitation.

10. Further it is the contention of the learned counsel that Order 34 Rule

is an exception to Order 21 Rule 85. The sale has been made only under Order

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34 of Code of Civil Procedure, which is a special provision. Hence, it is his

contention that requirement of the Code of Civil Procedure under Order 21 Rule

85 is not mandatory, while effecting sale under Order 34 of Code of Civil

Procedure.

11. In support of his contentions he has relied on the judgments in

S.R.Rajagopal and another Vs. M.kamalanathan and

three others reported in Manu/TN/1947/2014;

Barkat Ali and Another Vs. Badri Narain (Dead) By LRs.

reported in 2008 (4) Supreme Court Cases 615;

Kunhambu Vs. Geetha reported in 2001 (1) KLT 602

Perinthalamanna Taluk Rural Housing Co.op. Society

Vs. Unnikrishnan reported in 2010 (1) KLT 124 &

Ganpat Giri Vs. II Additional District Judge, Balia and

others reported in AIR 1986 Supreme Court 589.

12. In the light of the above submission, the point that arises for

consideration is in this revision is

Whether the sale held in the year 1972, i.e., on 16.11.1972

and confirmed on 31.03.1973 is null and void?

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13. Before adverting to the submissions of both sides, certain facts are

relevant to decide the issue. The revision petitioner was the owner of the

property. He has borrowed a loan under registered mortgage deed executed in

favour of one Sulochana. The suit in O.S.No.183 of 1969 came to be filed

against the revision petitioner by the said Sulochana. In the above suit both

preliminary decree and final decree has been passed. Thereafter, it appears

that the execution petition in E.P.No.260 of 1971 has been filed for sale of the

mortgaged property. The property was sold on 16.11.1972. The husband of the

decree holder bought the property in a Court auction sale. The sale was

confirmed on 31.03.1973 and certificate was also issued on 05.04.1973. The

Court auction purchaser took delivery of the property on 22.12.1973. After such

delivery of the property to the auction purchaser, the minor children of the

present revision petitioner filed a suit in O.S.No.312 of 1971 before the Sub

Court Pondicherry to set aside the above sale. The said suit has been

dismissed. The appeal filed against the above judgement in A.A.O. No.275 of

1973 has also been dismissed by this Court. Thereafter, E.A.No.260 of 1971

questioning the execution of the mortgage deed of the father and also

questioning the irregularity and fraud in conducting the sale has been filed and

the same has also been dismissed.

14. In the meanwhile, the auction purchaser who took delivery of the

property entered into an agreement of sale with the present contesting

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respondent. As he failed to execute the agreement, the present respondent filed

a suit in O.S.No.200 of 1982 for enforcement of such agreement. The above

suit was decreed after full contest and the respondent has also obtained delivery

of possession. The sale has been executed through Court in his favour. These

facts are not in dispute.

15. Further, the auction purchaser has not deposited the price money

within 15 days. However, he filed an application in E.A.No.516 of 1972 to

deposit the stamps after fifteen days and the Court has allowed the above

application and condoned the delay in depositing the stamp papers. As against

the said Order another application has been filed by the judgment debtor in

E.A.No.569 of 1972 contending that condoning the delay is not according to law.

The above application has been dismissed. Challenging the dismissal of the

above application E.A.No.569 of 1972 the judgment debtor has moved this Court

by way of revision and it has also been dismissed. These facts infact has been

suppressed in the petition filed by the judgment debtor.

16. It is curious to note that the judgment debtor has participated and

challenged the Orders of the Court. Even though the Order 21 Rule 85 does not

give any power to the Court to extend time for depositing the price money, the

Court has passed the Order permitting the auction purchaser to deposit stamps

after fifteen days. The above Order has also been challenged by the judgment

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debtor and it reached finality. It is further curious to note that in execution

proceedings each and every Order passed in every stage reached finality. In

this regard it is relevant to refer the judgment reported in Barkat Ali and another

Vs. Badrinarain (Dead) by LRs. reported in 2008 (4) Supreme Court Cases

615, wherein it has been held that

“The executing Court found that since after completing

preliminaries of issuing notice and finding that no objection

has been filed in spite of the service under Order XXI Rule

22 of the Code of Civil Procedure, 1908 (in short 'CPC') and

the Court had proceeded to next stage of execution for

attaching the property under Order XXI Rules 23 and 24 of

C.P.C., any objection raised subsequent thereto cannot be

entertained being barred by principles of constructive res

judicata. Against the dismissal of the objections dated

16.11.1972 by order dated 13.7.1974, an appeal was,

preferred before the High Court which has been dismissed

by the Learned Single Judge by judgment dated 16.1.1981.

The Learned Single Judge found that the objections filed on

16.11.1972, after the warrant of attachment was issued,

could not be entertained by the executing Court as the same

was barred by principles of constructive res judicata.

Ancillary issues raised by the Learned Counsel for the

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appellant were also found to be not sustainable and the

appeal was dismissed.”

17. The above decision makes it clear that every Order passed in the

every stage of the execution proceedings operates as res judicata. Though the

lower Court at the initial stage has extended time for deposit of stamp, which is

mandatory under unamended Madras Act before 1976, the above Order has

also been challenged and the same has reached finality. When the parties

challenged the order of the Court and the matter has reached finality, in

revisional Court, this Court is of the view that, such parties are bound by the

Orders and they cannot go beyond the Orders passed in the above proceedings.

No doubt, in the judgment cited supra by the revision petitioner shows that failure

of the auction purchaser depositing the money stipulated under Order 21 Rule

85, such sale is null and void. Absolutely, there is no dispute with regard to the

position of law in this aspect. But the fact remains that in this case, challenge

made to such Order of the Court enlarging the time and the same has reached

finality. That being the position, now the revision petitioner cannot contend that

sale is nullity in view of the non compliance of the Order 21 Rule 85.

18. It is curious to note that this application has been filed only in the year

1983 much after the amendment in the Code of Civil Procedure in the year 1976.

In Ganpat Giri Vs. II Additional District Jude, Balia and others reported in

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AIR 1985 Supreme Court 589, the Honourable Apex Court has held that any

rules framed by High Court which is inconsistent with the Code as amended by

the Amending Act, 1977 would cease to be enforced. In Kunhambu Vs. Geetha

reported in 2001 (1) KLT 602 the Single Bench of Kerala High Court dealt with

the similar matter under Order 21 Rule 85 Kerala which is pari materia with

Tamilnadu Act has held that after amendment of Central Act, the said

amendment has become inoperative and the Kerala Act was inconsistent to Rule

85 under the Amendment Act 104 of 1976. Kerala and Tamilnadu Acts are

similar in Order 21 Rule 85 to deposit the stamp duty. From the above

decisions, I am of the view that the amendment of the Central Act to deposit the

stamp duty is not a compulsory one. Only the sale price is made compulsory to

be deposited in time. On the date of this application, the Madras Amendment

has already become inoperative.

19. Be that at it may. The revision petitioner having failed in all his

attempts challenging the Order of the Court in extending the time has filed an

application to challenge the sale in the year 1983, when the Act itself has

become inoperative by virtue of Central Act 104 of 1976, filing such an

application, in my view, is barred by limitation. The sale took place in the year

1972. This application has been filed only in the year 1983. They cannot attack

the sale when the old Act has already been removed by Central amendment,

that too after 15 years of sale, which is clearly barred by limitation. It is also

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curious to note that the suit has been filed for recovery of mortgage money. It is

to be noted that Section 60 of the Transfer of Property Act deals with right of the

mortgager to redeem the property. Section 60 of the Transfer of Property Act

reads as follows :

“Right of mortgagor to redeem.—At any time after the

principal money has become 1[due], the mortgagor has a right, on

payment or tender, at a proper time and place, of the mortgage-

money, to require the mortgagee

(a) to deliver 2[to the mortgagor the mortgage-deed and all

documents relating to the mortgaged property which are in the

possession or power of the mortgagee], (b) where the mortgagee

is in possession of the mortgaged property, to deliver possession

thereof to the mortgagor, and (c) at the cost of the mortgagor

either to re-transfer the mortgaged property to him or to such third

person as he may direct, or to execute and (where the mortgage

has been effected by a registered instrument) to have registered

an acknowledgement in writing that any right in derogation of his

interest transferred to the mortgagee has been extinguished:

Provided that the right conferred by this section has not been

extinguished by act of the parties or by 3[decree] of a Court.

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20. Section 62 of the Transfer of Property Act deals with the right of the

usufructuary mortgage to recover possession. The right of redeeming mortgager

being a statutory right and the same can be taken away only in terms of proviso

appended to S.60 of the Transfer of Property Act which is extinguished by either

way by a decree or by the act of parties. Admittedly, in this case, a final decree

has been passed in the mortgage suit extinguishing the right of the mortgagee.

Therefore, his right came to an end on the date of passing of final decree.

Order 34 Rule 1 and 2 Code of Civil Procedure and Sub Rule 1 of Rule 1 debars

the plaintiff from all rights after the final decree is passed. When the

plaintiff/decree holder has not deposited any amount as per Order 34, even after

preliminary decree and before final decree and the property has been brought in

sale, he has lost his right. Rule 8 deals with the right of the mortgager in the suit.

The same makes it clear that even in a usufuctory mortgage, the property has

been sold in pursuant of the decree passed, if payment has not been made, the

Court shall pass a final decree. In this case, admittedly, the final decree has

been passed wherein the right of the judgment debtor has been lost. Thereafter,

final sale has been taken place. Once, a final decree is passed and no payment

has been made, the plaintiff is totally barred from all rights to redeem the

mortgaged property. Admittedly, the final decree has been passed and sale has

taken place in pursuance to the final decree proceedings. Only at the time of

sale of mortgaged property, the provision under Order 21 was followed.

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21. It is to be noted that strict complying of the procedure, though for sale

of the property is required, when the sale in pursuant to the Special Act or

Special provision in the act, the Special provision will prevail over to the general

provisions relating to the sale. In this regard, the Division Bench of this Court in

S.R.Rajagopal and another Vs. M.kamalanathan and three others reported in

Manu/TN/1947/2014 has held that when the sale was challenged under Order

21 Rule 85 was not complied and the sale made under the Partition Act, this

Court considering the various judgments of the Apex Court has held that the

auction sale following the procedures under Order 21 Rule 85 is not mandatory

and provisions under Order 21 are only guidelines.

22. In this case also, the sale has taken place in pursuant to the final

decree. Right of redeeming and foreclosure has been specifically dealt under

Order 34. When the judgment debtor has failed to pay the amount before the

sale is confirmed or before the final decree is confirmed, and sale is held, his

right of redeeming the properties itself is lost. Therefore, the question of

attacking the sale on technicalities does not arise at all. In any event, as

discussed above, the challenge made against the application to condone the

delay in payment of stamps has also reached finality.

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23. Having suffered various findings, this application has been filed

immediately after the auction purchaser originally lost the suit filed by the third

party in a suit for specific performance. This application has been filed in the

year 1983, after 12 years of confirmation of the sale, the conduct of the revision

petitioner clearly show that it is nothing but relitigation.

24. In this regard, it is relevant to refer the judgment in T.Arivanandam

Vs. T.V.Satyapal reported in AIR 1977 SC 2421, wherein the Honourable

Supreme Court has held that

“Here is an audacious application by a determined

engineer of fake litigations asking for special leave to appeal

against an order of the High Court on an interlocutory application

for injunction. The sharp practice or legal legerdemain of the

petitioner, who is the son of the 2nd respondent, stultifies the

court process and makes decrees with judicial seals brutum

fulmen. The long arm of the law must throttle such, litigative

caricatures if the confidence and credibility of the community in

the judicature is to survive.

25. In the judgment in K.K.Modi Vs. K.N.Modi reported in 1998-3-SCC-

573, the Honourable Supreme Court has held as follows :

“One of the examples cited as an abuse of the process of

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the Court is re litigation. It is an abuse of the process of the

Court and contrary to justice and public policy for a party to re

litigate the same issue which has already been tried and decided

earlier against him. But if the same issue is sought to be re-

agitated, it also amounts to an abuse of the process of the court.

A proceeding being filed for collateral purpose, or a spurious

claim being made in litigation may also in a given set of facts

amount to an abuse of the process of the Court.”

The above judgments are squarely applicable to the facts of this case. Since the

revision petitioner is estopped from challenging the earlier Orders, he cannot be

permitted to relitigate the issue. Therefore, this is revision is liable to be

dismissed.

26. Accordingly, this Civil Revision Petition is dismissed and the Order of

the first appellate Court is confirmed. No cost.

18.03.2019

vrc

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To

1. The Principal District Judge, Pondicherry

2. The Principal Sub Judge, Pondicherry.

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N.SATHISH KUMAR, J.

vrc

Order in

CRP.(NPD) No.799 of 2004

18.03.2019

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