ORDER
P. Shanmugam, J.
1. Revision petitioners are petitioners before the execution Court. They are the judgment-debtors in O.S. No. 103 of 1980. The decree-holders obtained attachment of properties mentioned in the petition and they were brought to sale on 2-1-1988 and sold an 20-1-1988. They have filed application under Section 47 of the Code of Civil Procedure to declare the sale conducted on 2-1-1988 as null and void. The learned Sub Judge after considering the application dismissed the same. The revision is against this order.
2. The facts leading to the filing of the above revision are as follows: O.S. No. 103 of 1980 was instituted by one Mathai Philip for recovery of a sum of Rs. 21,835/49. The suit was decreed on 14-8-1981. Six items of the properties which were attached before the judgment on 6-12-1980 during the pendency of the suit were brought to sale on 20-1-1988 for realisation of the decree amount. The sale was confirmed on 25-2-1988. The petitioners/judgment-debtors were the defendants in the suit. The 1st petitioner is the husband of the 2nd petitioner. They have not filed any objections while the attachment before the judgment was ordered on 6-12-1990 and though notices were served on them during the execution proceedings they did not file any application to set aside the sale. While so they tiled the present application under Section 47, C.P.C. on 27-7-1997 after the execution decree has become final and proceedings completed.
3. Some more relevant facts relating to the application are that the mother of the 2nd petitioner filed a claim petition as E.A. No. 75 of 1989 in respect of certain items of the property which was brought to sale. The said application was dismissed by the execution Court. Thereafter she filed a suit, O.S. No. 7 of 1989, before the Munsif Court, Haripad, for an injunction restraining the respondents, additional decree-holders, for obtaining delivery of 5 1/2 cents of land with building comprised in Survey No. 360 of Haripad village forming part of item No. 3 of the decree schedule property. The suit was dismissed on 27-6-1992. The mother of the second petitioner filed E.A. No. 172 of 1989 objecting to the delivery of the property. E.A. No. 198/89 was filed by the additional decree-holders for the removal of the obstruction. They were pending disposal. Again the mother of the 2nd petitioner filed O.S. No. 359/94 before the Sub Court, Mavelikara seeking for a declaration that the decree in O.S. No. 103/ 80 and the proceeding relating to the same are null and void. She had filed E.A. No. 71/95 to stay the execution proceedings till the disposal of O.S. No. 359/94 which was dismissed on 7-2-1997. She had also filed O.P. No. 34/97 before the District Court, Alapuzha, which was dismissed. She had subsequently preferred application to reopen the evidence in E.A. Nos. 174 and 175/97 on 25-2-1997 and for staying all the proceedings in the E.P. which were dismissed on 14-3-1997. The mother of the 2nd petitioner also preferred O.P. No. 4548/97 under Articles 226 and 227 of the Constitution of India against the execution orders. The same was dismissed on 14-3-1997.
4. Learned Counsel for the revision petitioners raised three main contentions: (i) the petitioners-judgment-debtors have no saleable interest in the properties sold. The said question ought to have been adjudicated upon by the executing Court under Section 47, C.P.C.; (ii) the decree-holders had bid at the auction and brought the property without permission of the Court and, therefore, the sale was illegal; and (iii) the value of the property is considerable and the property is sold for a nominal sum and hence there is material irregularity in the sale of the property.
5. Learned Counsel appearing on behalf of the respondents strenuously submitted that from the sequence of events and facts set out it would show that there has been a systematic attempt on the part of the judgment-debtors by themselves and by the aged mother of the 2nd judgment-debtor to somehow stop the execution proceedings, notwithstanding the fact that the decree was passed as early as in 1981 and the sale of the decree mentioned properties was conducted on 20-1-1988 and affirmed on 25-2-1988. The application dated 21-1-1997 under Section 47, C.P.C. by the judgment-debtors after knowing full well of the decree and the execution proceedings and sale is hopelessly and irretrievably barred by limitation. Respondents have sought permission from the Court to bid for sale that there are no bidders and the properties were properly valued and in any event there was no objection from the judgment-debtors or from the mother of the 2nd petitioner at any time, during the pendency of the execution proceedings. Ultimately he submitted that there is no merit in the C.R.P. and the application as well as this revision was filed to circumvent the liability and is made in sheer abuse of the process of the Court.
6. I have heard the counsel at length and considered the matter carefully. Section 47 of the Code enables all questions relating to discharge or satisfaction of the decree be determined by the executing Court and not by a separate suit. The question whether the petitioners/judgment-debtors have saleable interest in the property so as to get the discharge or satisfaction of the decree can be determined in the enquiry under Section 47 of the Code. It is well-settled by series of decisions of the Supreme Court as well as by High Courts that all objections to attachment and sale in execution of a decree raised between the parties to the suit on the ground that the properties are not liable to be attached, or not saleable in execution of the decree or matters coming within Section 47 of the Code. In this case it is asserted by the petitioners in the application under Section 47 of the Code that they have no right or possession over the property attached and do not have any saleable interest or right. Therefore an enquiry under Section 47 of the Code is maintainable. However the immediate further point that arises in the facts and circumstances of the case is whether the application is within the time and whether they are estopped from rai sing that issue.
7. The suit was decreed on 14-8-1981 and pending the suit the six items of the properties now sold already under attachment. The sale was conducted on 20-1-1988 and confirmed on 25-2-1988. Petitioners were fully aware of these proceedings. They did not raise their objections on the question of saleability or interest in the property. It is further seen that the 1st petitioner’s mother-in-law and the second petitioner’s mother filed one suit and one O.P. under Articles 226 and 227 which were dismissed. Yet another suit filed by her is still pending. She is aged 90 and it is clearly averred that petitioners are moving force behind in filing the successive E.As. and suits against the sale of the property. Therefore petitioners are clearly bound by the principles of res judicata as also of constructive res judicata. In the counter filed in C.M.P. No. 4124/97 by the respondents in this revision it is stated that the judgment-debtors by themselves and through the medium of their aged mother of the 2nd judgment-debtor are stalling the execution proceedings, it is further stated that the application under Section 4 of the Code ought to have been filed within three years from the date of the sale and is hopelessly barred by limitation. No reply has been filed. The filing of the consecutive applications and suits by the mother of the 2nd defendant is not disputed and the petitioners are helping her. Therefore it is clear that their present claim that in the attached property and in the properties sold subsequent to the decree they have no saleable interest ought to have been raised at the time of attachment and in the execution proceedings following the decree. Besides they have not filed this application to set aside the sale on that ground at least within three years from the date of the confirmation of the sale on 25-2-1988. Their notice and knowledge to all these proceedings are not in dispute. In Pushpa v. Ganpatsingh, AIR 1977 Raj 216, Rajasthan High Court has held that if a judgment-debtor who might and ought to have been raised a defence at an appropriate stage has failed to do so, he would be precluded from urging it at any subsequent stage of the proceedings. The petitioners have not specifically raised this question even in the grounds of revision except referring it in the statement of fact to the effect that they had no saleable interest in the property attached. Therefore, their present attempt to raise this question is ah afterthought and not bona fide and that they are estopped. Their application is liable to be dismissed on the ground of limitation as well as on the principle of constructive res judicata.
8. In the affidavit filed by the decree-holder on 14-10-1985 he had sought permission for the Court to bid at the auction in the case there are no others to purchase the attached property in the Court auction. The decree-holder was allowed to bid. Therefore it is not correct to say that the decree-holder did not seek leave of the Court, and he bid and brought the property without permission, as there was no objection from the judgment-debtors till the filing of the present petition. Order XXI, Rule 72(3) enables the judgment-debtor or any other person whose interests are affected by the sale to apply to the Court to set aside the sale if the decree-holder purchases the property by himself without permission of the Court. As there was no objection for the sale on 20-1-1988 sale has been confirmed on 25-2-1988, it has to be held that the petitioners have their objection and cannot be allowed to raise this objection nearly after 10 years of the sale. It is found that notice under Order XXI, Rule 66, C.P.C. was issued to the petitioners on 15-10-1989. The notice was accepted by the petitioners and they did not care to file any objection following which the proclamation was made and properties were sold on 20-1-1988. Thereafter also no objection was filed regarding the conduct of the sale and the sale was affirmed on 25-2-1988. Even in this application they do not claim any right, title or interest over the properties sold. Therefore, their con intention that sale was taken without express permission of the Court cannot be sustained.
9. In their memorandum of revision it is alleged that the value of the property is considerable and same can be ascertained by sending out a commission. It is also stated that the Court below acted with material irregularity since the property would fetch a price not less than Rs. 1,50,000/-. The approximate value given by the petitioners may be the present value. But the petitioners have brought the property for sale about 10 years back and the property was sold depending upon the market value then. In any event the petitioners who had noticed of the sale on 15-10-1989 and the value of the property at the time of settling the sale proclamation never thought it fit to the object of the valuation at any time. Further they had not filed any application under Order XXI, Rule 90 to set aside the sale on the ground of material irregularity in publishing or conducting it. Therefore, the present application under Section 47, C.P.C. is not bona fide and not maintainable and is time-barred.
10. Reliance is placed on the judgment of the Supreme Court in Desh Bandhu Gupta v. N. L. Anand and Rajinder Singh, (1994) 1 SCC 131 : (1993 AIR SCW 3458), wherein the Supreme Court held that under Section 47 all questions relating to execution, discharge or satisfaction of the decree should be determined by the executing Court alone. The pre-sale illegalities committed in the execution are amenable to the remedy under Section 47. Post-sale illegalities or irregularities causing substantial injury to the judgment-debtor are covered under Order XXI, Rule 90, C.P.C. While so holding the Supreme Court has taken notice of the fact in that case. The appellant had not been served with or given notice at the time of drawing up the proclamation of sale and no proclamation of sale was drawn up by the executing Court except accepting the ipse dixit of the decree-holder. It was found in that case that the procedure adopted by the executing Court bristles with several irregularities touching the jurisdiction of the Court. They are not material irregularities causing substantial injustice but are in violation of the mandatory requirements of the Rules. The Supreme Court also said that there is distinction between mere irregularity and material irregularity and the same is not liable to be set aside on proof of mere irregularity.
11. Learned Counsel for the petitioners relied on the judgment in Rajarethna Naikkan v. Parameswara Kurup, (1997) 1 Ker LT 777, for the proposition that the petitioners are entitled to seek the relief both under Order XXI, Rule 90 as well as Section 47 of the Code. The learned Judge in that judgment has taken the view that the relief that is sought for in an application under Order XXI, Rule 90 of the Code is not the same as the relief that can be claimed in an application under Section 47 of the Code, though both can result in the relief of setting aside the sale being granted. But the learned Judge after referring to several decisions of this Court and Supreme Court held that the grounds available for setting aside a sale under Order XXI, Rule 90 of the Code are not the same as the grounds available under Section 47 of the Code. In S. A. Sundararajan v. A. P. V. Rajendran, AIR 1981 SC 693, the Supreme Court observed that errors committed in setting the sale proclamation which are mere irregularities cannot be described as errors which render a sale void and hence the application made under Section 47 of the Code is not maintainable. In Dhirendra Nath Gorai v. Sudhir Chandra, AIR 1964 SC 1300, the Supreme Court approved the observation of Justice Colridge in Holmes v. Russel, (1841) 9 Dowl 487, wherein it has been held that it is difficult sometimes to distinguish between the irregularity and a nullity. If the party can waive the objection it amounts to an irregularity but if he cannot, it is a nullity. When an application under Section 47 of the Code is made on the ground that it is void, that is not the same as one that could be made under Order XXI,
Rule 90 of the Code.
12. A Full Bench of this Court in. Govinda Menon v. Varkey, 1970 Ker LT 440 : (AIR 1971 Ker 8), has held that lack of permission to bid as contemplated by Rule 72 of Order XXI of the Code, as is clear from Sub-rule (3) thereof, cannot make the sale held without sanction, void. That can only be a ground for having the sale set aside. The Full Bench also held that lack of notice under Rule 66 of Order XXI of the Code to the judgment-debtors before settlement of the proclamation would not make the sale that followed on such a proclamation void and it has to be set aside in appropriate proceedings and the application filed beyond the period prescribed under Article 127 of the Limitation Act was not maintainable.
13. In A. P. V. Rajendran v. S. A. Sundararajan, AIR 1980 Mad 123 (FB) has taken the view that defect and irregularity in the sale proclamation will be an irregularity in publishing and conducting the sale and that will attract Order XXI, Rule 90, C.P.C. and not under Section 47 of the Code. As the sale had been impeached only on grounds which attract Order XXI, Rule 90, the judgment-debtor cannot escape the period of limitation by framing his application as one under Section 47. The substance of the application must be considered in order to determine whether the application is one which falls under Section 47 or under Order XXI, Rule 90 of the C.P.C. The view of the Full Bench of the Madras High Court has been affirmed in the decision reported in S. A. Sundararajan’s case, AIR 1981 SC 693.
14. Both the substantial objections raised on behalf of the petitioners would squarely come under the mischief of Order XXI, Rule 90, C.P.C. and, therefore, the petitioners ought to have filed the applications within the time prescribed under Article 127 of the Limitation Act. Assuming that the plea by the petitioners on the ground of saleable interest would come under Article 137 and Section 47 application can be maintained including other grounds raised still the time has run out against the petitioners.
15. It is alleged that the petitioners were actively assisting the mother of the 2nd petitioner in filing obstruction petition and suits. O.S. No. 359/94 seeking to declare that the decree in O.S. No. 103/80 is null and void is pending. E.A. Nos. 172/89 and 1989/89 are pending. She had also preferred consecutive applications and suits for
simitar reliefs. In this context the observation of the learned Sub Judge that the present objections are raised just for the sake of obstruction is absolutely correct. It does not require any investigation to find out the ground reality and note that the judgment-debtors are bent or stalling the execution proceedings at one pretext or other, the decree is for the year 1981 and the sale was of the year 1988. In between these 7 years the judgment-debtors who are fully aware of the proceedings were obviously acting through the medium of the aged mother of the 2nd petitioner to file successive suits against the decree and applications against the executions. The Court cannot be invited to be a party to manifest mechanisation adopted by the petitioners to delay and drag on the proceedings to defeat the claims of “the decree-holders.
For all these reasons I do not find any grounds to interfere with the order of the Subordinate Judge. The dismissal of the application is perfectly justified in law and on facts. Hence the revision is dismissed.