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Andhra Pradesh High Court
Judges : A.R.LAKSHAMANAN
R.Rajamma - Appellant
Versus
Avula Saraswathamma - Respondent
Decided On : 07-17-72
CONFIRMATION OF SALE - ORDER PASSED BY COURT UNDER SUB-RULE (1) OF RULE 92 OF ORDER 21 OF THE CODE OF CIVIL PROCEDURE CONFIRMING THE SALE OF IMMOVABLE PROPERTY HELD IN EXECUTION OF A DECREE - REPRESENTATIVES OF THE JUDGMENT DEBTOR WHO DIED SUBSEQUENT TO THE DATE ON WHICH THE SALE WAS HELD AND PRIOR TO THE DATE OF CONFIRMATION OF SALE WERE NOT BROUGHT ON RECORD NOTWITHSTANDING THE FACT THAT THE APPLICATIONS FILED BY THE JUDGMENT-DEBTOR UNDER RULES 89 AND 90 OF ORDER 21, CIVIL P. C. WERE DISALLOWED.
Fact of the Case:
The judgment-debtor Rajamannar Naidu died on 28.11.1959 during the pendency of the appeal. The plaintiff and defendants 5 to 7 were brought on record as the legal representative of Rajamannar Naidu on the basis of the will in C.R.P. No. 1056/56 and that C.R.P. was dismissed on 8/03/1961.
Finding of the Court:
The confirmation of sale on 20/11/1961, and the sale on 18/06/1956, are valid and not vitiated by any infirmity whatsoever.
Issues: 1. Whether the suit is not vitiated by reason of the applicability of the principle underlying the doctrine of res judicata; 2. Whether the order of the Court below passed under sub-r. (1) of Rule 92 of Order 21, Civil P. C. Confirming the sale, is bad for the reason that the legal representatives of the judgment-debtor who died subsequent to date of sale and prior to the date of confirmation were not brought on record notwithstanding the fact that the judgment-debtor availed himself of all the remedies open to him in law including those under Rules 89 and 90 of Order 21, Civil P. C.
Ratio Decidendi: 1. The principle underlying res judicata is applicable to the execution proceedings as well. 2. An order passed by the Court, confirming the sale of immovable property held in execution of a decree, without bringing on record the Legal Representatives of the judgment-debtor, who died subsequent to the sale but before the confirmation of the sale, is not void especially, because of the fact, that the judgment-debtor has had his applications filed under Rules 89 and 90, disallowed after which alone, in this case, the order of confirmation was passed.
Final Decision: Appeal allowed.
( 1 ) THIS appeal by the 8th defendant who is the widow and legal representative of the third defendant, is directed against the decree and judgment of the learned Additional District Judge, Nellore dated September, 13, 1968, by which the suit O. S. 3/1965 instituted by the respondents herein was decreed. .
( 2 ) THAT suit itself was instituted in forma pauperis for partition and separate possession of the plaintiffs 1/4th share in the plaint schedule property and for profits.
( 3 ) THE point raised in this appeal for determination is whether an order passed by a Court under sub-rule (1) of Rs. 92 of Order 21 of the Code of Civil Procedure confirming the sale of immovable property held in execution of a decree representatives of the judgment debtor who died subsequent to the date on which the sale was held and prior to the date of confirmation of sale were not brought on record notwithstanding the fact that the applications filed by the judgment-debtor under Rules 89 and 90 of Order 21, Civil P. C. were disallowed. The Counsel appearing on either side stated that the point so formulated, was not covered by any authority either of this Court or of any other Court.
( 4 ) THE plaintiff is the mother of defendants 5, 6, and 8. The defendants 1 and 2 are the decree-holders in the suit O. S. No. 272/47 on the file of the District Munsifs Court Nellore filed against one by name Rajamannar Naidu. The third defendant was the auction purchaser and the 8th defendant the wife of the third defendant was brought on record as his legal representative.
( 5 ) THE plaint schedule property consists of two houses one a terraced house and the other a tiled house with vacant site bearing two door Nos. 83 and 84 in Ward No. 17, Subedarpet, Nellore town. Those houses belonged to one by name Alandur Rajamannar Naidu who purchased them under a registered sale deed in the year 1944 for a consideration of Rs. 3,400. 00 The sale -deed Ex. B-10 recites that the said Rajamannar Naidu raised Rs. 2,500. 00 by mortgaging the same property to one Chaturvedula Ramachandraiah. The same property was thereafter mortgaged to the 4th defendant. Rajamannar Naidu had no wife or children. The plaintiff is the widow of Rajamannar Naidus brother-in-law i. e. , wifes younger brother who died in the year 1945. Defendants 5 to 7 as already noticed are the sons of the plaintiff and defendants 5 to 7 to his house and was maintaining them. The said Rajamannar Naidu executed a will dated 27/01/1959 (Ex. A-1) where under he bequeathed the plaint-schedule properties to the plaintiff and defendants 5 to 7, and he died on November 28th , 1959.
( 6 ) THE third defendant was the auction purchaser of the plaint-scheduled house in execution of the decree passed in O. S. No. 272/47 and the 8th defendant as has been noticed is the wife and legal representative of the third defendant.
( 7 ) THE suit house was subject to two mortgages one in favour of Chaturvedula Ramachandraiah as noted already for an amount of Rs. 2,500. 00 and the other in favour of the 4th defendant for a sum of Rs. 4,000. 00 Besides this the property in question is subject to a decree obtained by the municipality against Rajamannar Naidu for certain municipal taxes. An execution petition was filed for the sale of the property in question subject to the two mortgages and the decree obtained by the municipality.
( 8 ) THE facts leading to the institution of the suit which gave rise to this appeal are as follows :
( 9 ) THE defendants 1 and 2 filed the suit O. S. No. 272/47 in the District Munsifs Court, Nellore against Rajamannar Naidu and obtained a decree. In execution of the said decree in E. P. No. 63/55 the plaint schedule property was attached and brought to sale subject to two mortgages and the decree in favour of the municipality. The judgment-debtor was served with sale notice. Upset price was originally fixed at Rs. 1,500. 00 No sale could be held in the first instance for want of bidders. T
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