Back
IN THE HIGH COURT OF BOMBAY
N. Mehta and Company
Versus
Padgilwar Industries
Decided on : February 25, 2005
Attachment - Execution Proceeding - Order 21, Rules 66, 68, 89, 90, 91 - The court discussed the auction sale of a property, objections raised by the judgment debtors, and the jurisdiction of the Executing Court. Key legal provisions such as Order 21, Rules 89, 90, 91 were interpreted to determine the tenability of objections and the authority of the Executing Court.
Fact of the Case:
The petitioner sought to quash an order and direct the Executing Court to execute a sale deed of a property auctioned in favor of the auction purchaser. The petitioner had obtained a compromise decree for recovery of a sum of money, and the judgment debtors raised objections during the execution proceeding.
Finding of the Court:
The court found that the objections raised by the judgment debtors were not tenable and that the Executing Court had exceeded its jurisdiction by permitting the judgment debtors to adduce evidence. The court also directed the Executing Court to grant a Sale Certificate to the auction purchaser and dismissed the objections raised by the judgment debtors.
Issues: The issues involved the tenability of objections raised by the judgment debtors, the authority of the Executing Court to entertain the objections, and the validity of the auction sale.
Ratio Decidendi: The court held that the judgment debtors were estopped from re-agitating grounds that had been previously rejected by the Executing Court and upheld by higher courts. The court also interpreted key legal provisions under Order 21, Rules 89, 90, 91 to determine the validity of the objections raised by the judgment debtors.
Final Decision: The writ petition was allowed, the order permitting the judgment debtors to adduce evidence was quashed, the objections raised by the judgment debtors were dismissed, and the Executing Court was directed to grant a Sale Certificate to the auction purchaser. The judgment debtor was also ordered to pay costs to the petitioner.
A. C. DHARMADHIKARI, J.
( 1 ) HEARD the learned counsel for the petitioner and the learned counsel for the respondents.
( 2 ) ADMIT. Taken up for final hearing with consent of the parties. The learned counsel for the respondents waive notice.
( 3 ) BY this petition under Articles 226 and 227 of the Constitution of India the petitioner/decree Holder seeks to quash and set aside the order dated 10-1-2005 passed by the 3rd Joint Civil Judge, Senior Division, nagpur below Exh. 172 in Special Darkhast no. 78 of 1999 and to hold that the applications moved by Respondent no. 3 - judgment Debtor are not tenable and to direct the Executing Court to execute the sale deed of the property auctioned in favour of respondent no. 4 - Auction Purchaser and to allow the petitioner to withdraw the decreetal amount out of the auction price deposited by respondent no. 4.
( 4 ) THE facts which are relevant for the purpose of deciding the present petition can be stated thus : the petitioner instituted Special Civil suit No. 134 of 1993 before the Civil Judge, senior Division, Ahmednagar for recovery of rs. 27 lacs and odd out of the commercial transaction. There was attachment before judgment of the property of the defendants therein. Respondent no. 1 was defendant no. 1, respondent no. 2 was the legal representative of defendant no. 2 Narayanrao and respondent no. 3 was defendant no. 3 in the said suit. The said suit was compromised between the parties. A compromise pursis to that effect was filed before the Court by the parties and in pursuance thereof the suit was decreed on 25-9-1998. The compromise pursis was signed by the petitioner/plaintiff, respondent nos. 1 to 3/ defendant and their counsel. Respondent no. 3/defendant no. 3 also filed an affidavit affirming the contents of the compromise pursis.
( 5 ) THE petitioner filed execution proceeding before the Court at Ahmednagar and subsequently it was transferred to Nagpur where it has been numbered as Special darkhast No. 78 of 1999.
( 6 ) IT appears that during the execution proceeding at Nagpur there was re-attachment of the property of the judgment debtors. The house on plot no. 1165 saptagiri on Central Avenue, Nagpur was auctioned on 5-10-2000. Respondent no. 4 offered the highest price of Rs. 72,28,000/ -. On the same day i. e. on 5-10-2000 respondent no. 3 filed objection (Exh. 57) under Order 21, Rules 66 and 68 of (lie Code of Civil Procedure. The Executing Court rejected the objection (Exh. 57) by order dated 31-3-2001. On 4-4-2001 the judgment- debtors moved an application (Exh. 105) for modification of the order dated 31-3-2001. The Executing Court rejected the same by order dated 22-10-2001. Respondent nos. 1 to 3 challenged the said order by preferring Civil revision Application No. 1093 of 2001. By order dated 27-8-2002 this Court dismissed the said application as not tenable.
( 7 ) ON 31-1-2003 the Executing court passed order confirming the auction sale in the name of respondent no. 4/auction purchaser for Rs. 72,28,000/ -. This order was challenged by respondent nos. 1 to 3 by preferring Civil revision Application No. 53 of 2003. By order dated 30-9-2003 this Court dismissed the revision application by detailed order. The dismissal of the Civil Revision application was challenged by respondent nos. l to 3 by Special Leave Petition (Civil) no. 23884 of 2003. The Special leave Petition was dismissed by the Supreme Court on 1- 10-2004.
( 8 ) ON 4-11-2004 respondent no. 3 moved an application (Exh. 159) for appropriate orders contending that by virtue of sale deed dated 26-6-1978 he is having 1/3rd undivided share in the house which was auctioned. It was followed by additional submission (Exh. 167) dated 1-12-2004 contending therein that respondent no. 3 appeared in the suit under a bona-fide belief that he was one of the partners of respondent no. 1, whereas it was recently revealed that he was never the partner of the said firm. It was followed by an application (Exh. 17
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
