Delhi High Court
Sh. Dharam Pal vs Smt. Hira Jhari Mishra & Anr. on 15 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EFA No.4/2010
% 15th July , 2014
SH. DHARAM PAL ......Appellant
Through: Mr. Soayib Qureshi, Advocate.
VERSUS
SMT. HIRA JHARI MISHRA & ANR. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Judgment debtors invariably use all tactics in the book, and not
in the book, to keep on objecting to the execution of the decree. This
Execution First Appeal is one such totally frivolous case.
2. The challenge by the present appeal is to the impugned order of
the executing court dated 2.2.2010 by which the objections which have been
filed by the defendant/judgment debtor have been dismissed. Objections
have been dismissed on various grounds. First ground is that the objections
are barred by limitation. The second ground is that the earlier objections
were filed to the sale certificate proceedings, and which objections were
EFA No.4/2010 Page 1 of 6
dismissed by the order dated 25.1.2008. It is also observed in the impugned
order that the appellant/objector states that the property does not belong to
him and if that is so it is not understood how the appellant would have locus
standi. It may be noted that the appellant stated that the property had been
transferred to one Sh. Harbir Singh. It is also relevant to note that Sh. Harbir
Singh had filed objections to execution, and which objections were
dismissed right till this Court. Also, the impugned order notes that the son
of the appellant one Sh. Kunwarpal Singh had filed objections and which
were dismissed.
3. Firstly, it is required to be stated that once execution
proceedings are completed, and sale certificate is issued, then, the auction
purchaser gets a complete right in the suit property. Such rights of auction
purchaser are not rightly disturbed by courts. The object of law is that the
bonafide purchaser at an auction being the auction purchaser after the sale
proceedings are complete and sale certificate is issued, should not be
harassed by means of applications for setting aside this certificate, of course,
except on limited grounds.
4. In the present case, I asked the counsel for the appellant to
show me the order of the executing court dated 25.1.2008, and which is
referred to at internal page 3 of the impugned order, and it is stated that
EFA No.4/2010 Page 2 of 6
objections to issuance of sale certificate filed by the objector were dismissed
by the order dated 25.1.2008, and the sale certificate was issued in favour of
the auction purchaser, but the counsel for the appellant states that he has not
filed that order. Counsel for the appellant was then asked that whether he
has filed copy of the objections to show the issue of whether the objections
were filed within the period of limitation as per Article 127 i.e 60 days after
the date of the sale, counsel for the appellant states that objector was not
aware of the auction proceedings and therefore there is fraud and hence
limitation starts from the date of his coming to know of the fraud.
5. I cannot agree. There is a specific limitation period provided of
60 days under Article 127 and beyond which period delay cannot be
condoned as Section 5 of the Limitation Act, 1963 is not applicable to
execution proceedings vide Mohan Lal Vs. Hari Prasad Yadav & Ors.
(1994) 4 SCC 177. In any case I refuse to believe the stand of the appellant
that he was not aware of execution of the decree. It is not possible to believe
that the appellant will not be aware of the decree having been passed and
executed, more so because admittedly the appellant had filed an application
under Order 9 Rule 13 of Code of Civil Procedure, 1908 (CPC) and which
was dismissed and finality had been achieved to the order dismissing the
application under Order 9 Rule 13 CPC.
EFA No.4/2010 Page 3 of 6
6. I may note that there are basically two steps in execution before
the sale certificate is issued. First stage is the stage of attachment when
objections are filed to attachment. Second is the stage post attachment
proceedings when auction proceedings for sale of the property are
conducted. Once auction proceedings for sale of the property are conducted,
then, objections cannot be raised to attachment of a property inasmuch as
failing to raise objections to adjustment concludes the issue that the
particular property is of the judgment debtor which is liable to be sold in the
execution of the money decree for recovery of the amount. So far as the
aspect of the finality of the sale certificate is concerned, it may be reiterated
and is noted in page 3 of the impugned order, that vide order dated
25.1.2008, objections filed by the objector to issuance of the sale certificate
were dismissed and sale certificate was issued in favour of the auction
purchaser and which is also an additional reason why now objections to
attachment cannot be considered vide Sri Ram Maurya Vs. Kailash Nath
and Ors. (1999) 9 SCC 276.
7. So far as the aspect of fraud is concerned, I really find the
argument to be a very specious argument because if the money decree has
become final the same is executable and all aspects of merits as to of alleged
compromise with the decree holder during the pendency of the suit or any
EFA No.4/2010 Page 4 of 6
other aspects of merit had to be taken up in the suit proceedings and not in
the execution proceedings because an executing court has to proceed taking
the decree to be final. It is because of this reason that it is the decree which
is executed and not the judgment because the court cannot go behind the
decree which is the operative part of the judgment i.e court cannot look into
the merits of the matter which are to be seen in the suit and not in the
execution proceedings.
8. Learned counsel for the appellant sought to argue that the
objections of Sh.Kunwarpal Singh which were discussed, is wrongly alleged
to be the son of the objector and that he is not the son of the objector. To this
aspect all that is required to be noted is that even if Sh. Kunwarpal Singh
was not the son of the objector obviously he was put up by the
objector/judgment debtor otherwise there was no reason why a totally third
person/stranger should object to the execution of the decree. In any case,
further this aspect of objections of Sh. Kunwarpal Singh is immaterial
because the present judgment debtor/objector had filed objections against
issuance of the sale certificate which have been dismissed by the order dated
25.1.2008, which has become final and therefore once again fresh objections
to execution of the decree cannot be entertained. Also, as already stated
above, the appellant claimed to have sold the property to one Sh. Harbir
EFA No.4/2010 Page 5 of 6
Singh who had filed objections and whose challenge to execution against the
property sold in auction have been dismissed.
9. In view of the above, there is no merit in the appeal, and the
same is therefore dismissed, leaving the parties to bear their own costs.
JULY 15, 2014 VALMIKI J. MEHTA, J.
Ne
