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TMI Blog1991 (7) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... uly, 1937. A final decree for sale for the realisation of Rs. 5001/13/6 was passed on 26th March, 1938. On 29th March 1938 the decree holders applied for execution of the said decree. The execution of the aforesaid decree was stayed and in the meantime C.P. and Berar Relief of Indebtedness Act, 1939 came into force. The judgment debtor Govind Harshe along with his minor sons namely, Sadashiv Rao and Ram Chander Rao applied for settlement of the debts on 14th September, 1939 in the Debt Relief Court, Sagar. The execution of the final decree for sale had been stayed by the executing Court as per the provisions of the Relief of Indebtedness Act. On 11th September, 1940, the Debt Relief Court reduced the amount and granted installments. 2. The creditors filed revision applications against the aforesaid order of the Debt Relief Court. The revision filed by Lakshmi Chand and Duli Chand was registered as Civil Revision No. 119 of 1940 while that of another creditor Pandey Shankernath was registered as Civil Revision No. 27 of 1941. The Additional District Judge disposed of both the revisions by order dated 29th September, 1941. Ex. P-4 is the copy of the order passed in Civil Revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put to auction and the highest bid of Rs. 5905 was knocked down in favour of one Gopal Rao Mutatkar on 20th August, 1942. 1/4th of the auction amount Rs. 1500 was deposited on the spot and the balance 3/4th amounting to Rs. 4405 was deposited on 4th September, 1942. 5. The Judgment debtor Govind Rao Submitted an application under Order XXI Rule 90 CPC for setting aside the sale dated 20th August, 1942. This application was rejected vide order dated 6th February, 1943. Miscellaneous Appeal filed against the said order was dismissed by the Second Additional District Judge, Sagar vide order dated 19th December, 1943. It may be noted at this stage that in the meantime the sale was confirmed vide order dated 10th April, 1943. Sadashiv Rao and Ram Chander Rao, sons of the judgment debtor Govind Rao Harshe who had become adult also moved the executing Court on 28th September, 1943 that they were also necessary parties to the execution case as they were also parties in the proceedings before the Debt Relief Court and as they were not made parties in the executing court, the order passed by the executing court dated 31st March, 1942 was void and without jurisdiction. This application wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the copy of the written statement dated 10th March, 1948 filed by Gopal Rao Mutatkar in which he admitted that the house under dispute was auctioned on 20th August, 1942 and the same was purchased by the Sagar Mahila Vidyalaya, Sagar through him and that defendant No. 1-b (G.R. Wakhle) as Secretary of the said Mahila Vidyalaya had made an application for issue of sale certificate and for possession of the house. The Sagar Mahila Vidyalaya, Sagar was a registered institution and the suit should have been filed against the institution itself and not in the name of its office bearers. Shri G.R. Wakhle was the Secretary of the Sagar Mahila Vidyalaya, Sagar in 1942 and 1943. He was no longer its secretary and the present Secretary of the said institution was Mrs. Kamlakar Nagarkar. It was thus prayed that the defendants 1-a and 1-b had been unnecessarily joined as parties to the suit and should be discharged. Thereafter, the plaintiffs impleaded Mahila Vidyalaya, Sagar as party. This suit filed by the aforementioned four sons of the judgment debtor was also dismissed on 27th December, 1949 and costs were imposed not only on the plaintiffs but also on defendant No. 4 i.e. Govind Rao Hars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yalaya for a declaration, possession and permanent injunction. Plaintiff Govind Rao Harshe died on 14th December, 1967 during the pendency of the suit and all the respondents in the present appeal were substituted in his place as his legal representatives. The suit was dismissed by the Trial Court on 13th December, 1968. On an appeal the District Judge, Sagar allowed the appeal and decreed the suit in favour of the present respondents granting the declaration, delivery of possession of the house together with a mandatory injunction directing demolition of some new constructions made by the Mahila Vidyalaya. Aggrieved against the judgment of the First Appellate Court, the defendant Mahila Vidyalaya filed a second appeal before the High Court. The High Court by order dated 12th December, 1974 dismissed the appeal. The defendant Mahila Vidyalaya in the above circumstances have come in appeal by the grant of special leave. 11. The High Court held that as Gopal Rao Mutatkar was the auction purchaser, no sale certificate could be issued by the executing court in favour of the appellant Mahila Vidyalaya. It was held that the bid in the auction was made by Gopal Rao for himself and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion bid and it was knocked down in his favour on 20th August, 1942. The sale was confirmed by an order of the executing court dated 10th April, 1943. Govind Rao the judgment debtor submitted an application for setting aside the sale under Order XXI Rule 90 CPC but remained unsuccessful. The steps taken by his adult sons Sadashiv Rao and Ram Chander Rao for impleading them as parties also proved futile. It is an admitted position that an application was submitted by the Mahila Vidyalaya through its Secretary as early as 5th January, 1944 for issue of a sale certificate in its name as the house was purchased in the auction for the Vidyalaya by Gopal Rao Mutatkar as a member of the institution. The Court on 26th February, 1944 ordered that the sale certificate be issued to Mahila Vidyalaya. The necessary stamps for the sale certificate were supplied by the Mahila Vidyalaya and the sale certificate was actually issued in the name of the Mahila Vidyalaya on 8th April, 1944. It is important to note that no finger was raised nor any steps were taken by the judgment debtor or his sons objecting the issue of sale certificate in favour of Mahila Vidyalaya. A suit was brought in the year 1948 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der XXI Rule 92 CPC by order dated 10th April, 1943. It is no doubt correct that the final bid in the sale was knocked down in the name of Gopal Rao Mutatkar and the sale was also confirmed in his name but the sale certificate was admittedly issued in the name of the Mahila Vidyalaya. In this regard an application was filed on behalf of Mahila Vidyalaya on 5th January, 1944 and the executing court had passed an order on 26th February, 1944 that the sale certificate will issue in the name of Mahila Vidyalaya. In the application filed by Mahila Vidyalaya it was clearly stated that the house in question was auctioned by the Court and was purchased by Gopal Rao Mutatkar on 20th August, 1942 for Mahila Vidyalaya. This stand taken by Mahila Vidyalaya was accepted and the executing court passed a specific order on 26th February, 1944 for issue of a sale certificate in the name of Mahila Vidyalaya. The sale certificate was thereafter, actually issued in the name of Mahila Vidyalaya on 8th April, 1944. Steps for executing the decree and for obtaining actual possession was also taken by the Mahila Vidyalaya. Govind Rao Harshe was a party to the execution proceedings and till the filing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is declared to be the purchaser. An application was submitted on 5th January, 1944 on behalf of Mahila Vidyalaya that it was the real purchaser and the bid in the auction was made by Gopal Rao Mutatkar on its behalf as he was a member of the institution. This application was accepted by the executing court by a specific order dated 26th February, 1944 and it was directed that the sale certificate shall be issued in favour of the applicant Mahila Vidyalaya. The executing court had jurisdiction to allow or reject such application and it cannot be said that the act of the executing court was clearly without jurisdiction and the sale certificate as well as the entire execution proceedings were void and inoperative. In case Govind Rao Harshe had any grievance he ought to have challenged the order dated 26th February, 1944 in the proper forum and had no right to challenge the same after 16 years by filing the present suit on 26th November, 1960. We are not going into the propriety of such order but the same cannot be said to be void on account of being without jurisdiction as held by the High Court. 16. The High Court while dealing with the question of limitation held that the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as determined by the High Court and it was necessary to challenge the said order within limitation. Even if the residuary Article 120 of the Limitation Act, 1908 is applied, it should have been challenged within 6 years and as such the present suit filed on 26th November, 1960 was hopelessly barred by time. 17. The High Court was clearly in error in taking the view that Govind Rao Harshe was the true owner and the appellant Mahila Vidyalaya was a trespasser . Even if it may be considered for a moment that sale certificate could not have been issued in favour of the appellant Mahila Vidyalaya still in the facts of this case it cannot be held that Mahila Vidyalaya was a trespasser and G.R. Harshe was the true owner at the time of filing of the present suit. The sale of the property in question was perfectly valid and as soon as the sale was confirmed in favour of Gopal Rao Mutatkar under Order XXI Rule 92 CPC, Govind Rao Harshe had no right or title in the property and Gopal Rao Mutatkar became the owner of the property. The admitted position which is borne out from the records is that Gopal Rao Mutatkar never claimed any right in the property nor took proceedings for obtaining ..... X X X X Extracts X X X X X X X X Extracts X X X X
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