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IN THE HIGH COURT OF BOMBAY AT GOA
BHARAT P. DESHPANDE, J.
Vaman Krishna Mandrekar and Ors. - Appellants
Versus
Satchit Krishna Manderkar and Ors. – Respondents
Writ Petition No. 705 of 2015
Decided On : 12-02-2024
Based on the provided legal document, the key points are as follows:
An unchallenged judicial order remains valid and binding until it is vacated, recalled, or declared void by a court with proper jurisdiction (!) (!) .
The order passed by the Inventory Court on 30/04/2009 for fixing the matter for auction was not challenged by any interested party and thus became final and enforceable (!) (!) .
The subsequent application filed on 06/12/2012 by the head of the family was primarily for fixing a date for the auction (licitation), not for initiating a new auction or for a fresh order of licitation (!) (!) .
The appellate court erroneously interpreted the nature of the application filed in 2012, misconstruing it as a request for a new auction, which led to a wrongful conclusion of waiver of the right to licitation due to delay (!) (!) .
The order of the Inventory Court dated 30/04/2009, which accepted the request for auction, remains valid and operative, as it was not challenged and was passed by a competent court with jurisdiction (!) (!) (!) .
The order passed in 2009 was kept in abeyance (sine die) due to pending litigation, but this does not negate its validity or enforceability (!) .
The Court reaffirmed that procedural misinterpretations or failures to challenge a valid judicial order do not render the order void or inoperative (!) (!) .
The appellate court's decision was found to be based on a misconstruction of facts and misapplication of legal principles, leading to its quashing (!) (!) .
The petition was allowed, and the impugned judgment was set aside, reaffirming the validity of the original order and the procedural correctness of the inventory proceedings (!) (!) .
Parties are to bear their own costs as per the ruling (!) .
These points emphasize the importance of respecting unchallenged judicial orders and clarify that procedural applications for fixing auction dates, when filed within the framework of existing valid orders, do not constitute new rights or orders, nor do they imply waiver of prior rights or orders.
JUDGMENT :
(Bharat P. Deshpande, J.)
1. Rule was issued vide order dated 09/12/2015.
2. Heard Mr. Nigel Da Costa Frias, learned Counsel for the petitioner and Mr. M.B. D'Costa, learned Senior Advocate for the Respondent.
3. A limited question is raised in the present petition as to whether the order passed by the First Appellate Court in allowing the appeal and rejecting the order of the Inventory Court for fixing the date of auction, needs interference.
4. Mr. Costa Frias would submit that upon the death of Krishna Mandrekar the Inventory Proceedings were instituted bearing No. 102 of 1999 before Panaji Court. Only one immovable property was listed in the list of assets left over by the deceased. Head of the family appointed by the Inventory Court applied for fixing the date for auction on the ground that valuation has been done and the description of assets left is also prepared. The learned Court passed an order on 30/04/2009 on such application that the matter is fixed for auction.
5. Mr. Costa Frias would further submit that immediately after passing of such order, the Inventory Court passed another order on the same date thereby keeping the matter sine die since suit between the parties was filed. It was directed that the Inventory will be taken up only and when the proceedings between the parties is disposed of. Subsequently on 23/07/2010 head of the family vide his application requested the Inventory Court to take up the matter on board. Notices were issued to the interested parties and the matter was fixed for appearance from time to time.
6. Mr. Costa Frias would then submit that an application was filed on 06/12/2012 for fixing the date for auction, which was objected by filing reply by the respondents. The Inventory Court after hearing both the parties allowed such application and fixed the matter for auction.
7. Mr. Costa Frias would submit that the interested party filed appeal challenging the said order of the Inventory Court on the ground that the application for licitation/auction was not filed within time and therefore such right of the party stands waived. The Appellate Court by accepting contentions of the respondents allowed the appeal, which is challenged in the present matter.
8. Mr. Costa Frias would submit that the order passed by the Inventory Court on 30/04/2009 is still in existence and such order being a judicial order is having the force of law till it is vacated, recalled or declared void by a Court having jurisdiction. He submits that the objections in the appeal were raised with regard to the time in which licitation has to be applied. However he would submit that the first order dated 30/04/2009 is still in operation and which was allowed on an application filed by the head of family which has not been objected or set aside till date.
9. Mr. Costa Frias would submit that subsequent application dated 06/12/2012 was only with a purpose of fixing a particular date for auction since the earlier application was allowed for licitation/auction. He submits that the Appellate Court misconstrued two different aspects and arrived at a wrong conclusion.
10. Mr. M.B. D'Costa, learned Senior Counsel appearing for the respondents would submit that Article 1391 is very clear and the application itself is bad in law as there is no contention of the head of family that he is bidding for the said proceedings. There is no expression for desire to auction. He submits that therefore the order dated 30/04/2009 is of no consequence as it is not in accordance with Article 1391.
11. Mr. D'Costa, learned Senior Counsel would then submit that there is specific limitation for seeking the relief of licitation and on expiry of such period, such right considered to be waived.
12. Rival contentions fall for determination as under.
13. Article 1391 of the Civil Code deals with second examination and inspection of the file in connection with conference of the parties. It provides that after the description is made, what is provided in the f
AI
An unchallenged judicial order remains valid and binding until vacated, and misinterpretation of procedural applications can lead to erroneous appellate decisions.
The main legal point established in the judgment is the determination of the starting point of limitation for filing an application under Rule 95 of Order XXI of CPC and the interpretation of Article....
The main legal point established in the judgment is that the sale becomes absolute only after the final disposal of ancillary proceedings, and the one-year limitation period under Article 134 of the ....
Order of the Tribunal it is not discernible as to whether any application for condonation of delay was filed or how the Tribunal dealt with the belated approach of the borrowers.
The main legal point established is that an auction sale can be set aside if there are substantial irregularities and fraud, and the application to set aside the sale was filed within the limitation ....
The limitation for filing an application under Order XXI Rule 89 CPC is sixty days, not thirty, and stay orders do not exclude this period.
The limitation period for an application under Order XXI Rule 89 begins from the date of the auction, not the confirmation of sale.
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