9911796707
TMI Blog1981 (3) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... erabad, Venkappa v. Lakshmikant Rao. (AIR 1956 Hyderabad 7), Orissa, Jagannath Ram-anui Rai Deb v. Lakshmi Naravan Tri-pathi. (AIR 1960 Orissa 197) and Patna High Courts Baiinath Prasad Sah v. Ramphal Sahni. (AIR 1962 Pat 72). The learned single Judge felt some difficulty in distinguishing the said cases or reconciling the conflict of opinion. He observed : As the only point in the instant cases relates to the decision of the obiection relating to limitation of the execution. I refer these cases to a larger Bench for decision. 3. The revisions were laid before a Full Bench of three Judges. The Full Bench held that it was not competent to overrule another Full Bench of three Judges in Genda Lal's case. It was hence desirable that the matter be considered by a larger Bench. That is how the matter has come up before this Full Bench of five Judges. 4. Shyam Lal. Kishan Lal and Kan-haiya Lal were three brothers. Shyam Lal on 25th June. 1944, took a loan from Sohanlal. the present applicant and de-posited title deeds of some properties as security. Certain arbitration proceedings followed, in which an award was made on 10th March, 1954. allowing the claim of Sohan Lal for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale shall remain stayed. On the same day namely, 8th October, the court, having found that the Amin had not properly certified the sale, directed that the sale may be held within thirty days. The matter was directed to be put up on 8-11-1966. 11. During the pendency of these objections, the judgment-debtor died. Proceedings to substitute his heirs were taken. The heirs were duly substituted. But they did not file any objection. The objections were heard by the execution court on 2nd December, 1967. By its judgment dated 18th December. 1967, the court held that the decree was not a nullity for lack of registration. The second point related to the plea of limitation, viz., that the second execution application was barred by limitation. The court held that the decree-holder's counsel concedes that the execution application was barred by limitation, because the first execution application was dismissed at Mathura on 24th August. 1957. The present application was filed more than six years later, on 14th March, 1966. It was clearly barred by limitation. On these findings the execution application was dismissed as barred by limitation. Aggrieved, the decree-holder has come up to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for decision to this Bench. Neither the learned single Judge nor the three-Judge Full Bench had framed or formulated any particular question for decision of this Full Bench. In the circumstances, it is pertinent to see whether the aforesaid question does on the facts of the case, arise for decision. 17. Shvamlal was the iudgment-debtor. He was served with notice under Order XXI. Rule 22. C. P. C. He did not appear nor did he file any objection. After his death his personal heirs were substituted. They also did not file any objection. Therefore the question whether the judgment-debtor is precluded from filing an objection by the doctrine of constructive res iudicata does not, on facts, arise. 18. In the present case, four sets of objections were filed. The preliminary question is whether the ohiectors could be said to be the judgment-debtors or his representative so as to be barred by the doctrine of constructive res judicata. In order to correctly appreciate the position, let us look at the facts a little more closely. The award which was made rule of the court and on which a decree was pronounced on March 10, 1954. stated :-- The suit is decreed for ₹ 1,00,000/-w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . K. Sharma. They claimed title to house No. 115 which was purchased by them from Shyamlal, the judgment-debtor, by a deed of sale dated September 24, 1962. They claimed to be owners in possession of this house. It was stated that the execution of the decree has become barred by time. 23. Miscellaneous Case No. 33 of 1960 arose out of an obiection filed by Bhu-vanendu Ariaria. He claimed that he was owner in possession of houses Nos. 118 to 121 on the basis of a sale deed dated April 30, 1965 executed by Kishan Lal, and his sons, who were claiming to be the exclusive owners under a family settlement of 1941 by which these houses were allotted exclusively to the share of Lala Kishanlal. He also pleaded that the execution was barred by time. 24. All these objectors prayed that the houses mentioned in their obiec-tions should be released from sale in favour of the obiectors. 25. Thus the four objections related to some only of the properties which were sought to be sold by the decree-holder. The properties which were sub-ject to the objections were 110 to 114, 115, 116 to 118, 118 to 121 and 122, 123 and 124 to 127. Thus houses Nos. 110 to 127 were the subiect-matter of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was on September 24, 1962 in favour of Gupta in 1963. 1964 and 1965. 28. Section 52 of the Transfer of Property Act codifies the doctrine of lis pendens. It provides :-- Transfer of Property pending suit relating thereto. -- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir' or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose. Explanation -- For the purposes of this section the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chased by him. He can validly take all available pleas to oppose sale of his property. 30. On the facts the position is that all the four obiectors were neither the iudgment-debtor nor his representatives. The question of law whether the judg-ment-dehtor or his representative will or will not be barred by the doctrine of constructive res judicata does not arise for consideration. We hence refrain from expressing any opinion on the correctness of the view taken in Genda Lal's case (AIR 1936 All 21) (FB). 31. As already seen, no objection was filed in respect of the sale of properties 102 to 109 of item No. 11 and in respect of the sale of the ice factory mentioned at Item No. 10 of the memorandum. These properties had. in fact, been put to auction. The execution court had directed stay of confirmation of sale. Rule 92 of Order XXI. C. P. C. reads :-- Sale when to become absolute or be set aside :-- Where no application is made under Rule 89. Rule 90 or Rule 91. or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. It is clear that after having ordered the auction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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