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Court No.38
Civil Misc. Writ Petition No. 59550 of 2009
Kamla Singh Vs. Hari Singh and others
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Hon’ble A.P. Sahi, J
This writ petition has been filed against the order dated
19.8.2009 passed by the learned District Judge, Deoria, in Civil
Revision No.122 of 2009, whereby an application moved by one of
the decree holders Kamla Singh, S/o Kalpnath Singh, has
succeeded in getting the order of the execution court dated
13.7.2009 set aside and the objection filed by the judgment
debtor under Order XXI Rule 90, who is petitioner before this
Court, has been rejected as being barred by time.
The petitioner – Kamla Singh, S/o Ghurahu Singh, contends
that in view of the order of the Apex Court dated 26.10.2007, the
application was maintainable and the revisional court has reversed
the order of the trial court on erroneous considerations completely
ignoring the order of the Apex Court.
Sri C.K. Parekh, learned counsel for the petitioner, has
relied on the decision reported in AIR 1992 SC 1357, 2004 (3)
Current Tax Cases 671, 2004 (1) JCLR 824, 2002 (2) Current
Revenue Cases 591 and 1998 (2) ARC 271. Sri Parekh contends
that the application moved by the petitioner can be treated to be
an application under Order XXI Rule 90 and could have not been
treated as an application under Section 47 CPC and further the
bar of limitation did not apply and, as such, in view of the
decisions cited herein above, the court below ought not to have
interfered with the order of the executing court.
Sri B.R. Singh, learned counsel for the contesting
respondent, contends that the observations made by the Apex
Court in the order dated 26.10.2007 is not a direction nor does
the petitioner get a right to move an application in as much as
such an application was not maintainable keeping in view the
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previous proceedings which had attained finality against the
petitioner in this case up to the High Court. Sri Singh contends
that even if the petitioner is aggrieved then as a matter of fact, he
seeks interpretation of the order passed by the Apex Court which
cannot be gone into by this Court.
Having heard learned counsel for the parties, it is on record
that a money decree was passed against the petitioner on
21.4.1980. For the satisfaction of the said decree, the property
was sought to be auctioned and the decree holder himself became
the auction purchaser. It is during the execution proceedings that
an objection was filed against the auction proceedings and the
objection was rejected on 4.10.1994. An application was moved
for cancelling the auction in a revision filed against the said order
of the executing court but the revision was also dismissed on
17.2.1995 and the application filed at the revisional stage was
also rejected. The auction was confirmed on 17.11.1998. Learned
counsel contends that the confirmation was invalid as the
proceedings in relation to the challenge to the auction was still
pending consideration.
The matter came up before this Court and the writ petition
was ultimately dismissed. The petitioner approached the Apex
Court and the Apex Court passed the following order on
26.10.2007:-
“Heard learned counsel for the petitioner.
After some arguments, learned counsel for the
petitioner is permitted to withdraw these petitions
with liberty to the petitioner to file a petition under
Order XXI Rule 90 of the Code of Civil Procedure,
1908, in accordance with law. If such an application is
filed, the same shall be considered by the executing
court in accordance with the provisions of law.”
A perusal of the aforesaid observations made by the
Supreme Court indicates that it was the petitioner himself, who
withdrew his Special Leave Petition to enable him to file an
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application under Order XXI Rule 90 to be considered by the
executing Court in accordance with law.
The consideration in accordance with law, therefore, was to
be made keeping in view the applicability of the provision, the
previous litigation between the parties as well as the law of
limitation. The trial court, in my opinion, over looked the aforesaid
aspects and proceeded to pass an order directing the parties to
lead oral evidence. The revisional Court , therefore, rightly
proceeded to set aside the said order of the execution court and
has also arrived at the correct conclusion that the petitioner had
availed of the opportunity on merits and his objections already
stood rejected. In such a situation, the petitioner was not found
entitled to the benefit of law of limitation under Section 14 of the
Act. The conclusion drawn by the revisional court, therefore,
cannot be said to be erroneous. The judgment relied upon by the
learned counsel for the petitioner do not come to his aid. The writ
petition lacks merit and is, accordingly, dismissed.
Dt. 25.1.2010
Irshad