Allahabad High Court
Jintendra Kumar And Another vs Parvati (Deceased) And 7 Others on 6 February, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:17387
Court No. - 37
Case :- MATTERS UNDER ARTICLE 227 No. - 1184 of 2025
Petitioner :- Jintendra Kumar And Another
Respondent :- Parvati (Deceased) And 7 Others
Counsel for Petitioner :- Krishna Nand Rai,Vijay Anand Rai
Hon'ble Alok Mathur,J.
1. Heard Shri Vijay Anand Rai, learned counsel for the petitioners and learned Standing Counsel for the State respondents.
2. By means of the present petition, the petitioners have challenged the order dated 15.10.2024 passed by the Additional District and Session Judge/F.T.C. Court No. 2, Ballia in Civil Revision No. 19 of 2023 (Jitendra Kumar and Another versus Parvati (deceased) and others) and order dated 18.01.2023 passed by Court of Civil Judge (S.D.) Ballia in Misc. Case No. 124 of 2012 (Jitendra and Another versus Parvati and others).
3. The facts in brief as stated by the petitioners are that the dispute in the present case has its roots in the Suit preferred by respondent no. 1 Parvati w/o Late Virda Prashad alias Vinda Prasad (deceased) in the court of Civil Judge (Senior Division), Ballia which was registered as Suit No. 197 of 1993 for decree of recovery of mortgage money with interest from the judgment debtor. The aforesaid Suit No. 197 of 1993 was decreed on 22.11.2002 holding that the decree holder is entitled for amount of Rs. 1,05,492/-. Subsequently, the decree holder had filed an Execution Suit before the Court of Civil Judge (S.D.) Ballia which was registered as Suit No. 36 of 2002.
4. It is stated that during the execution proceedings by means of order dated 10.01.2003 orders were passed for auction of mortgage property. It is during the pendency of the said proceedings that the decree holder had moved an application for being permitted to participate in the said auction and accordingly his bid was duly accepted. The petitioners claims' to be the owner of the mortgage property and is in possession of the same and when the stage came for handing over the possession of the said property , he had moved his objection under Order 21 Rule 85 of the C.P.C. The said objection were rejected by means of order dated 19.07.2003.
5. Aggrieved by which the petitioners had approached this Court by filing Civil Misc. Writ Petition No. 44033 of 2003. In the said writ petition, certain interim orders were passed directing the opposite parties not to confirm the sale proceedings, but subsequently the said petition came to be dismissed for want of prosecution. There is no dispute that no application for restoration was filed by the petitioners.
6. Subsequently, the petitioners again moved objections under Order 21 Rule 85 of the C.P.C. In the said objections it was stated that though the auction was settled in favour of decree holder for amount of Rs. 1,06,000/-, but he had deposited only an amount of Rs. 1,05,492 within a period of 15 days and deposited the remaining out of Rs. 458 much beyond the prescribed time and accordingly submits that the said auction proceedings had lapsed looking to the conduct of the auction purchaser and consequently no directions for handing over the possession of the auction property were being passed by the court concerned. He has vehemently submitted that in case the provisions of Order 21 Rule 85 are not complied then the said auction becomes null and void and no benefit of the same can be given to the auction purchaser.
7. In support of the submissions raised, learned counsel for the petitioners has placed reliance on the judgment of the Supreme Court in Gas Point Petroleum India Limited versus Rajendra Marothi & Ors. 2023 LawSuit (SC) 115.
8. It has been submitted that in the aforesaid facts that the objections made by the petitioners under Order 21 Rule 85 came to be considered by the executing court and were rejected by means of an order dated 18.01.2023 against which the petitioner has preferred a revision before the court of Additional District and Sessions Judge/F.T.C. Ballia which has also been rejected on 15.10.2024 and both the said orders have been assailed by the petitioner in the present writ petition. The only ground urged by the petitioners is that the decree holder was under an obligation to deposit the bid amount within 15 days failing which, the entire sale proceedings will be held to be null and void and accordingly the benefit of the sale cannot be given to the auction purchaser and the property would have to be auctioned again.
9. It is noticed that both the courts below have duly considered the fact that the petitioners himself have approached this Court by filing a writ petition, being the Civil Misc. Writ Petition No. 44033 of 2003 wherein interim order was passed in his favour not to confirm the sale proceedings during the pendency of the said petition. There is further no dispute that on 22.02.2005 one week's time was granted to the auction purchaser to deposit poundage money within one week and accordingly the auction purchaser apart from had deposited the remaining amount of the consideration as well as the poundage money and the Court had also taken notice of the said fact where the case was subsequently listed on 01.03.2005.
10. Subsequently, the petition was dismissed for want of prosecution and no steps were taken for restoration of the same. This fact has been duly considered by both the courts stating that the said order dated 25.02.2005 amounts to enlargement of time on the strength of which the auction purchaser has deposited the remaining amount and in case the petitioner was aggrieved by the order dated 25.02.2005 it was open for him to have assailed the said order, but he did not challenge the said order and accordingly he cannot subsequently rely upon the said fact to assail the auction proceedings on the same ground.
11. Apart from the above, a perusal of the objections preferred by the petitioners before the trial court, it is noticed that the same objections were raised by the judgment debtor filing objection under Order 21 Rule 58. In the said objections also it was stated that the auction purchaser did not deposit the entire amount of the auction money within the time prescribed and hence the auction cannot be settled in his favour and has to be declared null and void.
12. The trial court had also considered the identical set of facts raised by the judgment debtor and by means of the order dated 30.09.2011 rejected the same. It is also not disputed that the judgment debtor never assailed the findings of the order dated 30.09.2011 before any higher forum and consequently the findings recorded therein have attained finality. The same dispute on the basis of the same facts has been raised by the petitioners who are successor in interest of judgment debtor, raising objection under Order 21 Rule 85 which stands rejected by means of interim order. The question which arises for this Court is as to whether in the present facts and circumstances the trial court or the appellate court had taken a different view then what was taken by the trial court while rejecting the application under Order 21 Rule 19 by the order dated 30.09.2011. Though the order dated 30.09.2011 has not been annexed along with the present petition, but the said facts finds mention in paragraph no. 10 of the application preferred by the petitioners themselves by filing objection under Order 21 Rule 85 and consequently the said facts can be relied upon for deciding the said writ petition.
13. From the above, it is clear that once a particular issue has been decided by the court of competent jurisdiction and same is not assailed before any higher forum then the same becomes binding between the parties. Accordingly, the issue was decided on 13.09.2011 and not having been challenged before higher forum, has attained finality.
14. Accordingly, this Court is also of the considered view that where the same objection is being raised by the petitioners, who are successor in interest of judgment debtor, the Trial Court and the Appellate Court could not have taken another view of the matter which was taken by the same very court while deciding the objections of the judgment debtor and rejecting the same by means of order dated 30.09.2011.
15. Apart from the above, we do not find any infirmity in the reasons recorded by the trial court as well as the appellate court for rejecting the application preferred by the petitioners.
16. Undoubtedly, the sale consideration had to be paid within a period of 15 days, but during the period of 15 days interim order of the High Court was in operation.
17. On an application being given by the auction purchaser the said time was enlarged and they were permitted to deposit the said amount and the said amount was in fact deposited and the said fact was duly intimated to the Court which is also being recorded by them in the order dated 01.03.2005.
18. In case, the petitioners were aggrieved by the order of enlargement of time, it was open to have assailed the said order before any higher forum, but the petitioners did not raise any objection and acceded to the same order and subsequently after substantial length of time cannot assail the effect of the said order in subsequent proceedings.
19. After having anxious consideration to the arguments raised by the counsel for the petitioners and upon perusal of the record, this Court is of the considered view that the issue pertaining to Order 21 Rule 85 stood concluded by the previous order dated 30.09.2011. Apart from the above, the petitioners themselves did not assail the order dated 25.02.2005 extending the time for deposit of the amount and lastly the said objection have been raised at an extremely belated stage.
20. For all the aforesaid reasons in the present case, no such circumstance has been mentioned or made out requiring interference of this Court under Article 227 of the Constitution of India. Hence, the prayer as sought by the petitioners is rejected.
21. In view of the above, the petition is accordingly, dismissed.
Order Date :- 6.2.2025
SY
