1997 Supreme(P&H) 1742

PUNJAB & HARYANA HIGH COURT
Swatanter Kumar, J.
Rocky Tyres, Chandigarh
Versus
Ajit Jain
C.R. No. 3293 of 1996,
Decided On : DECEMBER 17, 1997

The principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding.

Headnote:

CIVIL PROCEDURE CODE - ORDER 21, RULES 92 TO 94 - SALE CERTIFICATE - ISSUANCE - CONDITIONS - COMPLIANCE - RES JUDICATA - APPLICABILITY - OBJECTIONS - MAINTAINABILITY.

Fact of the Case:

The auction purchaser filed an application for extension of time to deposit some disputed amount to the extent of Rs. 1,00,500/-, which was not granted by the executing Court and even appeal against the same was dismissed. However, vide order dated 24-11-1995 the Hon'ble Supreme Court of India granted extension of time to the auction-purchaser to make up the deficiency and the order reads as under :- “As prayed for, time is extended for deposit of Rs. 1,00,500/- within a period of one month from today in the Executing Court. No further time will be granted.Mr. Mehta, learned counsel for respondent No. 1 undertakes to withdraw the appeal filed in the District Court. It is accordingly dismissed as withdrawn.” After the extension was granted the executing Court vide its order dated 29-1-1996 had permitted the auction-purchaser to deposit the amount and thereafter had directed the issuance of a sale-certificate in accordance with law. This order was assailed in Civil Revision No. 406 of 1996 by the judgment-debtor/objector. This civil revision was dismissed vide order dated 26-3-1996 and the relevant part of the order dismissing the civil revision reads as under :- “Thus, as the auction-purchaser complied with all the directions of the Apex Court given in both the orders dated December 1, 1994, and November 24, 1995, the auction-purchaser is now entitled to get the sale certificate issued in his favour and also to get the possession of the said property. Consequently, in my considered view, there is no merit in this revision, which is hereby dismissed with costs, which are quantified at Rs. 2,000/- to be paid to the auction-purchaser.” Against this order the objector-judgment debtor had preferred a special leave petition before the Hon'ble Supreme Court of India, which was dismissed vide order dated 17-4-1997, which reads as under :- “The special leave petition is dismissed.” After the dismissal of the Special Leave Petition the objector-judgment debtor filed objections under S. 47 of the Civil Procedure Code before the learned executing Court. These objections were dismissed vide order dated 31-7-1996 which has been impugned in the present revision petition.

Finding of the Court:

The executing Court has passed a well reasoned order upon consideration of various judgments and I see no reason to interfere with the said order. There is no jurisdictional or any other error apparent on the face of the record which would call for any interference by this Court in exercise of its revisional jurisdiction, which is of a limited scope. In the facts and circumstances of this case there can be no reason whatsoever, to hold that the impugned order is Coram Non Judice. The order is in consonance with the settled principles of law and squarely falls within the jurisdiction exercised by the executing Court. Consequently, this revision fails and is dismissed with costs which are assessed at Rs. 2,000/-.

Issues: 1. Whether the learned Executing Court was obliged to grant opportunity to the petitioner to lead evidence and without affording such an opportunity, rejection of the objections of the objector amounts to an error apparent on the face of the record? 2. Whether in view of the order of the Apex Court dated 1-12-1994 passed under Art. 142 of the Constitution of India, gives colour to the sale in question as a private sale. Thus, the sale has lost the character of sale by public auction as contemplated under Order 21 of the Code of Civil Procedure? 3. Whether the provisions of Order 21, Rules 92 to 94 of the Code are not attracted in the present case. Thus, the sale-certificate issued by the learned executing Court vide the impugned order does not satisfy the basic ingredients necessary for such purpose?

Ratio Decidendi: 1. The purpose of granting an opportunity to prove his case to an objector while entertaining objections under S. 47 read with Order 21, Rules 97 to 108 of the Civil Procedure Code does not amount to permission for abusing the process of law or court. The discretion must be exercised by the Court in such cases. Of course discretion is governed by settled judicial principles and must be exercised within four corners of law, but such a discretion cannot be termed as a mere routine exercise of judicial discretion. 2. The order of attachment, sale, confirmation of sale and issuance of sale-certificate, all have been passed by the learned executing Court while exercising its powers under various Rules of Order 21 of the Code. Further more, Art. 142 of the Constitution of India vests in the Hon'ble Supreme Court widest powers to do complete justice between the parties and all other powers under various procedures can no way affect or curtails the powers of the Supreme Court. This contention need not detain me any further as all Courts including this Court are bound by the orders passed by the Supreme Court and its interpretation would not be open to this Court, specially in the facts and circumstances of the present case. There was a conclusive sale in favour of the auction-purchaser in terms of the order dated 1-12-1994, which stands fully complied with as per the findings of all the Courts and duly up-held by the Hon'ble Supreme Court. 3. The record before this Court clearly shows that the submissions raised in the present proceedings were actually raised for the consideration of the concerned Courts at different times for determination. In regard to the factum of possession it is to be noticed that in the order of the Supreme Court dated 1-12-1994 it is mentioned that the auction-purchaser is in possession of the entire property.

Final Decision: Revision dismissed.