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PETITIONER: RADHEY SHYAM JAISWAL(DEAD) & ORS.

       Vs.

RESPONDENT: SMT. RAM DULARI DEVI & ORS.

DATE OF JUDGMENT:       01/05/1996

BENCH: SEN, S.C. (J) BENCH: SEN, S.C. (J) PUNCHHI, M.M.

CITATION:  JT 1996 (5)   620        1996 SCALE  (4)197

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SEN. J.      Late Hanuman  Das filed  a suit  for recovery  of money against Raghunandan  Ram and  his sons  - Mewalal, Misri Lal and Sewa  Lal - and his brother Babunandan Ram. In the suit, an order of attachment before judgment was passed in respect of the  house now  in dispute.  The suit was decreed against Raghunandan Ram and his three sons but was dismissed against Babunandan Ram.  The decree-holder  applied for execution of the decree (execution case No.3 of 1951) by sale of one half share in  the disputed  house. The  sons of  Raghunandan Ram filed an  objection  under  Section  47  of  Code  of  Civil Procedure that  it is  only the  share of Raghunandan Ram in the joint family Property which could be sold. The objection was upheld.  Hanuman Das went up in appeal to the High Court and contended  that the  sons were liable for the payment of the father’s  debt. The  entire one half share of the father and of  the sons  in the ancestral property was liable to be sold in  the execution of the decree. The appeal was allowed and it  was held  that the  decree-holder, i.e., Hanuman Das was entitled  to proceed against one half share of the house in dispute.      After the  decision of  the appellate  court, execution proceeding commenced  once again but Raghunandan Ram died on 9.1.1960.  The   decree-holder  moved   an  application  for striking off  the name  of Raghunandan Ram of the record and continuing the  execution proceedings. It was contended that the heirs  of Raghunandan  Ram - Newalal, Misri Lal and Sewa Lal were  already parties in the proceedings and that it was not  necessary   to  bring   them   on   record   as   legal representatives. The  prayer was  allowed by the Civil Judge by passing  an order  as prayed for after giving a notice of hearing to the sons of Raghunandan Ram.      In the  execution case,  an order  for sale of the half share of the disputed house was made, a proclamation of sale was made  and 20.4.1961  was fixed  as  the  date  of  sale.

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However, the  sale did  not take  place because a compromise was arrived  at between  the sons of Raghunandan Ram and the decree-holder. It  was agreed  that the  sons would  pay the whole of  the decretal  amount  in  monthly  instalments  of Rs.500/- each.  A sum  of Rs.500/-  was paid  to the decree- holder who  was in  the court.  The sons  of Raghunandan Ram were to  pay the  remainder of  the decretal  dues in  three instalments  on   31.5.1961,  30.6.1961  and  31.8.1961.  In default of  payment of any of these instalments, Hanuman Das was entitled  to put  the attached  house  to  sale  without issuing  any   further  fresh  sale  proclamation.  On  this compromise being reached. the Civil Judge passed an order on 31.4.1961 striking  off the  execution  case  for  the  time being.      The  judgment-debtors,   however,  did   not  pay   the instalments. Another  application for  execution was made on 16.11.1961 (execution  case No.  22/1961). In  that case, it was prayed  that the  record of the original case No. 3/1951 be sent  for and execution proceeded with in accordance with law in  view of  the  default  committed  by  the  judgment- debtors. Pursuant  to the said prayer, one half share in the disputed house was put to sale once again and was ultimately sold to  one Bhagga  Ram on  8.9.1962. The  entire  purchase price was paid by Bhagga Ram on 17.9.1962.      The case of the appellants who are the sons of the late Bhagga Ram is that they are living in the house since Bhagga Ram purchased  the property  in  the  auction  sale.  To  is alleged that the property was in a very bad state and Bhagga Ram had  spent large  sums of money in the renovation of the house.      The widow  and daughters  of Raghunandan  Ram filed  an objection on 11.10.1962 in the court alleging that after the passing of  the Indian  Succession Act,  1956, the widow and daughters became  entitled to  the property along with three sons but  were not  brought on  record after  the  death  of Raghunandan Ram  and that  the sale  had taken  place behind their back. The omission to implead them went to the root of the  jurisdiction   of  the  execution  court  to  sell  the property. The sale, therefore, was void ab initio and should be set  aside. The  objection was  upheld by the Civil Judge and by  an  order  dated  8.10.1963  the  sale  effected  on 8.9.1962 pursuant  to the  order of  the execution court was set aside.  The auction-purchaser  did not prefer any appeal against this order.      However, the  decree-holder preferred  an appeal to the court of Second Additional Judge, Allahabad who by his order dated  3.10.1964   allowed  the  appeal  and  dismissed  the objections filed by the objectors with costs. The court held that the  widow and the daughter had never put in appearance in the  execution case  for thirteen  years  and  filed  the objections only  after the  sale had taken place with a view to further  delay the  execution proceedings. The objections have been filed belatedly to delay the execution proceedings and prevent  the decree-holder  from getting  the benefit of the decree obtained by him.      The widow  and the  daughters of  Raghunandan Ram being aggrieved by the decision of the Additional Judge, preferred an execution  second appeal  in the High Court of Allahabad. The High  Court allowed the appeal and upheld the objections raised by the widow and the daughters of the judgment-debtor and cancelled the sale of property.      The  High   Court  pointed  out  that  after  reserving judgment, it went through the record and discovered that the execution application giving rise to the present proceedings was filed  on 16.11.1961 while the order under execution was

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passed on  29.10.1949. This  went to  show that  there was a delay of  eighteen days  beyond the  limit of  twelve  years fixed by  Section 48  of the  Code of  Civil Procedure as it stood at  that time.  He, therefore, directed the case to be fixed for further hearing in order to give the decree-holder and the  auction-purchaser an opportunity to meet the point. The case  was, thereafter,  taken up  for further hearing on the adjourned date. But the decree-holder did not appear. On behalf of  the auction-purchaser,  a  prayer  was  made  for examining the  file of  the  execution  case  No.3/1951  and No.22/1961.  It   was  contended  that  the  sale  had  been confirmed during  the pendency  of the  appear  and  even  a certificate of sale had been issued.      The court  held that it was unnecessary to call for any of the  files inasmuch  as the  entire file of the execution case in  which the  sale took place and also the application for execution  was available in court. The subsequent papers relating to  confirmation of the sale during the pendency of the appeal  were not  necessary for  deciding the  questions raised in the appeal.      It was  held that  Section 48  of the  Civil  Procedure Code, as  it stood at the material time, was a bar to filing any execution application beyond the period of 12 years from the  date   of  passing   of  the   decree.  The   execution application, which was filed on 16th November, 1961, was for execution  of   a  decree  passed  on  29th  October,  1949. Therefore, it  was clearly beyond the period of 12 years and was barred  by limitation.  It was recorded in the order "it was not a fresh application for execution within the meaning of  that   provision".  The  Court,  therefore,  passed  the following order :      "In the result, the appeal succeeds      and  is  allowed.  The  appellant’s      objection  under   section  47   is      allowed. The  execution application      filed  on   16th  November,   1961;      Execution Case  No. 22  of 1961  in      the court  of    the  Civil  Judge,      Mirzapur, is dismissed. The sale of      the property  and the  confirmation      thereof and  the  sale  certificate      issued in   pursuance  thereof  and      other action taken, stand annulled.      The  auction   purchaser  shall  be      entitled to  refund of  the  amount      paid  by   him.  However,   in  the      circumstances, the   parties  shall      bear their own costs throughout."      The decree-holder  did not appear at the final hearing. The auction-purchaser  also did  not seriously  dispute that the  application   for  execution   pursuant  to  which  the judgment-debtor’s property was sold was beyond the period of twelve years  from the  date of  the decree. In that view of the matter,  the Court was right in coming to the conclusion that the fresh application  for execution was barred by time in view  of the provisions of sub-section (1) (a) of Section 48 of  the Civil  Procedure Code as it stood at the material time.       It  has been  argued on behalf of the appellants  that the execution  proceedings initially  taken were compromised and the  judgment-debtors had agreed to pay off the decretal does  by instalments. There was a failure on the part of the judgment-debtors to  pay  such  instalments  and  limitation should be computed from the date of the failure. It does not appear from  the judgment  that this point was urged at all.

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On the contrary, the Court after referring to the provisions of Section 48 of Civil Procedure Code, has recorded that "it was not  suggested that  it was  not a fresh application for execution within  the meaning of that provision". That being the position, the appellant cannot now be permitted to raise the point  which was not even argued in the court below. The court also did not go into the question of the effect of the failure on  the part of the decree-holder to bring the widow and daughters of the judgment-debtor on record.      A point  was taken  by the  appellant that considerable improvement to  the  property  was  brought  about  by  him. Therefore,  he   must  be   suitably  compensated   for  the improvements brought  about by  him before  the property  is allowed to be taken back by the judgment-debtors. As against this, it  has to  be borne  in mind  that the  case  of  the appellant-auction purchaser  is that  immediately after  the auction sale,  he went  into possession  of the property and brought about improvements. He has been in possession of the property since  then and  has enjoyed the use and benefit of this property  for a considerable period of time. It appears that on  30.11.1982 an  order was  passed by  the then Chief Justice and  V.D.Tulzapurkar, J.  directing  the  Civil  and Sessions  Judge,  Mirzapur,  to  make  a  valuation  of  the improvements made  by the  auction-puchaser to  the property after the  date of  the purchase on the basis of the current market price.  A further direction was given for maintenance of status  quo. The  District Judge, Mirzapur, sent a report to this  Court in which he has stated that improvements made by the auction-purchaser were valued at Rs.86,335/-.      We, therefore,  affirm the  order dated 8.2.1982 passed by the  Allahabad High  Court in Execution Second Appeal No. 4267 of  1964 but  direct that  a further sum of Rs.86,335/- must be  paid by  the respondents to the appellants. Save as aforesaid, the appeal is dismissed. No order as to costs.