JUDGMENT
Rohee K.J., J.
1. Heard the learned Counsel for the petitioner and the learned Counsel for the respondents.
2. Admit. Taken up for final hearing with consent of the parties. The learned Counsel for the respondents waive notice.
3. By this petition under Articles 226 and 227 of the Constitution of India the petitioner/decree holder seeks to quash and set aside the order dated 10-1-2005 passed by the 3rd Joint Civil Judge, Senior Division, Nagpur below Exh. 172 in Special Darkhast No. 78 of 1999 and to hold that the applications moved by respondent No. 3 judgment debtor are not tenable and to direct the Executing Court to execute the sale deed of the property auctioned in favour of respondent No. 4 auction purchaser and to allow the petitioner to withdraw the decreetal amount out of the auction price deposited by respondent No. 4. 4. The facts which are relevant for the purpose of deciding the present petition can be stated thus :
The petitioner instituted Special Civil Suit No. 134 of 1993 before the Civil Judge, Senior Division, Ahmednagar for recovery of Rs. 27 lacs and odd out of the commercial transaction. There was attachment before judgment of the property of the defendants therein. Respondent No. 1 was defendant No. 1, respondent No. 2 was the legal representative of defendant No. 2 Narayanrao and respondent No. 3 was defendant No. 3 in the said suit. The said suit was compromised between the parties. A compromise pursis to that effect was filed before the Court by the parties and in pursuance thereof the suit was decreed on 25-9-1998. The compromise pursis was signed by the petitioner/ plaintiff, respondent No. 1 to 3/defendants and their Counsel. Respondent No. 3/defendant No. 3 also filed an affidavit affirming the contents of the compromise pursis.
5. The petitioner filed execution proceeding before the Court at Ahmednagar and subsequently it was transferred to Nagpur where it has been numbered as Special Darkhast No. 78 of 1999.
6. It appears that during the execution proceeding at Nagpur there was re-attachment of the property of the judgment debtors. The house on plot No. 1165 ‘Saptagiri’ on Central Avenue, Nagpur was auctioned on 5-10-2000. Respondent No. 4 offered the highest price of Rs. 72,28,000/-. On the same day i.e. on 5-10-2000 respondent No. 3 filed objection (Exh. 57) under Order 21, Rules 66 and 68 of the Code of Civil Procedure. The Executing Court rejected the objection (Exh. 57) by order dated 31-3-2001. On 4-4-2001 the judgment debtors moved an application (Exh. 105) for modification of the order dated 31-3-2001. The Executing Court rejected the same by order dated 22-10-2001. Respondent Nos. 1 to 3 challenged the said order by preferring Civil Revision Application No. 1093 of 2001. By order dated 27-8-2002 this Court dismissed the said application as not tenable.
7. On 31-1-2003 the Executing Court passed order confirming the auction sale in the name of respondent No. 4/auction purchaser for Rs. 72,28,000/-. This order was challenged by respondent Nos. 1 to 3 by preferring Civil Revision Application No. 53 of 2003. By order dated 30-9-2003 this Court dismissed the revision application by detailed order. The dismissal of the Civil Revision Application was challenged by respondent Nos. 1 to 3 by Special Leave Petition (Civil) No. 23884 of 2003. The Special Leave Petition was dismissed by the Supreme Court on 1-10-2004.
8. On 4-11-2004 respondent No. 3 moved an application (Exh. 159) for appropriate orders contending that by virtue of sale-deed dated 26-6-1978 he is having 1/3rd undivided share in the house which was auctioned. It was followed by additional submission (Exh. 167) dated 1-12-2004 contending therein that respondent No. 3 appeared in the suit under a bona fide belief that he was one of the partners of respondent No. 1, whereas it was recently revealed that he was never the partner of the said firm. It was followed by an application (Exh. 172) dated 24-12-2004 for grant of permission to lead evidence in support of the objection filed by respondent No. 3. All these applications were opposed by the petitioner/decree holder. The Executing Court by order dated 10-1-2005 allowed the application (Exh. 172) and permitted respondent No. 3 to adduce evidence in support of the objection raised by him. The said order is under challenged.
9. Mr. A.C. Dharmadhikari, the learned Counsel for the petitioner/decree holder, strenuously urged that after passing of the compromise decree the petitioner has been persuading to recover the decreetal amount right from the year 1999. Mr. Dharmadhikari submitted that though there was attachment before judgment of the property of the judgment-debtors, during the execution proceedings the property was re-attached and the auction sale was held on 5-10-2000. Thereafter various objections were raised by respondent Nos. 1 to 3. All of them were rejected by the Executing Court and the auction sale was confirmed on 31-1-2003. The order of confirmation of sale was upheld by the High Court as well as the Supreme Court. Thus nothing remained except issuance of Sale Certificate in favour of the auction purchaser namely respondent No. 4 under Order 21, Rule 94 of the Code Civil Procedure.
10. Mr. Dharmadhikari submitted that respondent No. 4 has submitted draft Sale Certificate and it has also been approved by the Executing Court. However thereafter respondent No. 3 moved various applications namely Exh. 159, 167 172 raising flimsy grounds only with a view to delay the execution proceedings and to deprive the petitioner-decree holder of the fruits of the decree.
11. Mr. Dharmadhikari submitted that while submitting compromise pursis dated 25-9-1998 and swearing an affidavit in support of the compromise pursis, respondent No. 3 was aware of the alleged sale deed dated 26-6-1978 and his alleged 1/3rd undivided share in the house. However he allowed the Court to pass a decree and even acquiesce to the attachment of the said house before judgment.
12. Mr. Dharmadhikari further submitted that it is irrelevant whether respondent No. 3 was or was not a partner of respondent No. 1 because respondent No. 3 was joined as defendant in his personal capacity and not as partner of respondent No. 1 or even as the legal representative of deceased defendant Narayanrao. Mr. Dharmadhikari, therefore, submitted that the applications (Exhs. 159, 167 and 172) are frivolous and the Executing Court had no jurisdiction to entertain them by permitting respondent No. 3 to adduce evidence. By permitting the judgment-debtors to adduce evidence the Executing Court has reviewed its earlier orders and grossly exceeded its jurisdiction. Mr. Dharmadhikari further submitted that by passing the impugned order the Executing Court showed utter disregard to the orders passed by the Higher Courts. The same is, therefore, totally arbitrary, illegal and cannot be sustained.
13. Mr. A.G. Gharote and Mr. S.S. Sharma, the learned Counsel for respondent Nos. 2 and 3 justified the impugned order. They submitted that respondent No. 3 was never the partner of respondent No. 1 and he was under bona fide belief that he was such a partner. Passing of a consent decree would not come in the way of respondent No. 3 to raise objection. They submitted that the sale does not become absolute on mere passing of order of confirmation. They submitted that in fact the suit was against the partnership firm and not against respondent Nos. 2 and 3 in their personal capacity. In fact respondent No. 2 was joined as the legal representative of deceased Narayanrao. Thus the liability of respondent Nos. 2 and 3 is restricted to the property inherited by them from deceased Narayanrao and no more. They further submitted that the house sold in auction was purchased by Narayanrao and respondent Nos. 2 and 3 by sale deed dated 26-6-1978 and each of them are having 1/3rd undivided share therein. The said house was never partitioned amongst them. The decree is not binding on the shares of respondent Nos. 2 and 3. As such the auction sale of the entire house is illegal. No Sale Certificate can be issued in favour of the auction purchaser namely respondent No. 34. They submitted that it is permissible for the Executing Court to go behind the decree under certain circumstances. Respondent No. 3 wanted to adduce evidence in this respect and that has been permitted by the Executing Court in the interest of justice. No fault can be found with the said order and that the order needs to be confirmed.
14. In support of the above contentions reliance was placed on the following cases: –
i) Bhavari Vaja and Ors. v. Solanki Hanuji Khodaji Mansang and Anr., A.I.R. 1972 S.C. 1371.
ii) Shamrao Jairam Arbhat v. Uttam Bhomaji Modak, 1983 Mh.L.J. 309.
iii) Madhukar Sagun Karpe (deceased) by heirs v. Institute of Public Assistance, 1998(3) Bom.C.R. 101.
iv) U. Nilan v. Kannayyan (dead) through L.Rs., A.I.R. 1999 S.C. 3750.
v) Saleem Abdul Majid Mujawar and Ors. v. Maria Francisca D’Souza, 2000(4) Bom.C.R. 738.
15. I have carefully considered the rival submissions. I have also gone through the case law. Firstly it may be noticed that respondent No. 3 has not been joined in the suit either as partner of respondent No. 1 or as the legal representative of deceased Narayanrao. He has been joined in his personal capacity. It may further be noticed that respondent No. 3 not only signed the compromise pursis but also sworn an affidavit in support of the contents of the compromise pursis. Thus it is immaterial whether he was or was not a partner of respondent No. 1. Secondly he endorsed the attachment before judgment of the house though he was aware that he was having 1/3rd undivided share in the said house. It may further be noticed that though there was attachment before judgment, the property was re-attached and fresh proclamation to that effect was also issued. It may further be noticed that respondent No. 3 raised objections and they were rejected by the Executing Court. The auction sale was confirmed by the Executing Court in favour of respondent No. 4 on 31-1-2003. The said order of confirmation was upheld by the High Court and ultimately by the Supreme Court. Respondent No. 3 is, therefore, estopped from re-agitating the same ground again and again.
16. It may be noticed that after the attached property is sold by auction there are three ways to set aside the sale. The first remedy is given under Order 20, Rule 89 of the Code of Civil Procedure which provides that :
“Any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court:
(a) for payment to the purchaser, a sum equal to five percent of the purchase-money, and
(b) For payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder,
17. It is apparent that in the present case nothing of this sort has been done by respondent No. 3. Another remedy is given under Order 21, Rule 90 of the Code of Civil Procedure which provides that :
“Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.”
Apparently there is no material irregularity or fraud in conducting the sale Hence this rule also would not apply.
18. The third remedy is given under Order 21, Rule 91 of the Code of Civil Procedure which provides that:
“The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.”
19. In the present case respondent No. 4 who is the auction purchaser, has not moved any such application. On the contrary the learned Counsel for respondent No. 4 supported the contentions of the petitioner-decree holder. It is thus obvious that the application moved by respondent No. 3 (Exh. 159) and the additional submissions made by him (Exh. 167) have no legal basis. The Executing Court had no jurisdiction to entertain them and consequently the Executing Court could not have permitted respondent Nos. 1 to 3 to adduce evidence in support of Exhs. 159 and 167.
20. Mr. Dharmadhikari, the learned Counsel for the petitioner, rightly pointed out that, in fact the Executing Court should have first dealt with the tenability of Exhs. 159 and 167 before entertaining the application (Exh. 172) and permitting respondent No. 3 to adduce evidence. The Executing Court conveniently by-passed Exhs. 159 and 167 and straight way proceeded to decide Exh. 172. By adopting this method, the Executing Court has exercised the jurisdiction not vested in it. The impugned order is thereby rendered illegal and unsustainable.
21. In view of the position discussed above, I proceed to pass following order:
a) The writ petition is allowed.
b) The order dated 10-1-20005 below Exh. 172 permitting respondent No. 3 to adduce evidence is quashed and set aside.
c) The application (Exh. 159) and additional submission (Exh. 167) of respondent No. 3 are dismissed as not tenable.
d) The Executing Court is directed to grant Sale Certificate to respondent No. 4 Auction Purchaser under Order 21, Rule 94 of the Code of Civil Procedure forthwith, if no application/objection by any other judgment-debtor is pending.
e) Respondent No. 3 shall pay cost of Rs. 5,000/- (Rs. Five Thousand Only) to the petitioner and shall bear their own.
f) The rule is made absolute in the above terms.
Lateron:
The learned Counsel for respondent No. 3 prays for staying this order for three weeks in order to enable him to challenge the order. The prayer is rejected.