http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: R.P.A. VALLIAMMAL

       Vs.

RESPONDENT: R. PALANICHAMI NADAR & ORS.

DATE OF JUDGMENT:       03/02/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      This special  leave petition has been filed against the judgment of the High Court of Madras, made on May 7, 1996 in CRP No. 46-96. Admittedly, the petitioner’s mother had filed an application  under Order  XXI, Rule  64, CPC to set aside the execution  of sale  of  two  items  of  properties.  The petition ultimately  came to  be dismissed and became final. After he  demise, the  petitioner  filed  application  under Section 47 of the CPC contending that the property could not be brought  to sale  for several reasons. In the High Court, one of  the grounds raised was that the properties were sold for  a  grossly  inadequate  price  and  sale  of  both  the properties was  excessive execution.  It was stated that the decree was  only  for  a  sum  of  Rs.  10,000/-  while  two properties valuing  Rs. 40,000/-  and another Rs. 1,00,000/- have been brought to sale and, therefore, they are in excess of the  decree in execution. The High Court has negative the contention on  the  ground  that  since  the  title  of  the petitioner had  been negatived  on earlier  occasion and had become final,  it could  not be  gone  into  for  the  third occasion Even  though the petitioner had one-sixth share, as contended, in  view of the prohibition contained under Order 21, Rule  93, CPC  and since  objection in  respect  of  the excessive execution  was not  raised before the proclamation was settled  the objection  cannot be  countenanced. Shri B. Kanta Rao,  learned counsel for the petitioner contends that in view of Section 47 of the CPC, the petitioner is entitled to raise the objection at any stage and, therefore, the view taken by  the High  Court is  not correct in law. We find no force in  the contention.  Section 47  postulates  that  all questions arising  between the  parties to the suit in which the  decree   was  passed,  or  their  representatives,  and relating to  the execution, discharge or satisfaction of the decree, shall  be determined  by  the  Court  executing  the decree and  not by  a separate  suit.  Explanation  1  added thereto by  Amendment Act,  1976  postulates  that  for  the purposes of  this section,  a plaintiff  whose suit has been dismissed and  a defendant  against whom  a  suit  has  been dismissed, are  parties to  the  suit.  The  opportunity  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

object to  executability of  the decree  could be taken only once and  repeated applications appear to be unwarranted. It is not  in dispute  that  petitioner’s  mother  had  already agitated the right title to the property and claimed that to the extent of her right, the execution was not valid in law. That right  having been  negatived  and  become  final,  the petitioner cannot  have any  higher right  than  the  mother herself had.  The petitioner  having allowed  the orders  to become final,  it would not be open to the petition to raise the contentions  thereafter. Even otherwise also, as held by the High Court, the objection as to excess execution has not been raised.  Though Order  21, Rule  90(3), CPC  may not be strictly construed  so as  to the put a fetter on the Court, due to  non-raising of  the objection before proclamation of sale and  the objection  could be  raised even  at  a  later stage, but  since the  title has  already been  lost and has become   final,    the   petitioner   cannot   agitate   the executability of  the decree  in the  absence of  any  legal title to  question the  correctness of  the execution. Under these circumstances,  we do  not  think  that  we  would  be justified to  exercise the  power under  Article 136  of the Constitution.      The special leave petition is accordingly dismissed.