T. Ramaiah vs Sajjan Bai and Others

The revisionist in both these revisions is the judgment-debtor in Ex. No. 723 of 1987 pending on the file of the Court below. Respondents are the decree-holders therein.

In C.R.P. No. 715 of 1999, judgment-debtor has challenged the Executing Court''s order dated 10-2-1999 passed rejecting his application under Section 151 of the CPC which was filed praying to recall its order dated 19-4-1997 dismissing his earlier I.A. No. 2 made under Order 21, Rule 90 of the CPC, and to adjudicate it afresh.

In C.R.P. No. 716 of 1999, judgment-debtor has questioned the Executing Court''s order dated 10-2-1999 which has been passed allowing decree-holders'' application under Order 21, Rule 95 of the CPC directing him to deliver possession of the property in question to the decree-holders.

This litigation between the parties has a history of long drawn legal battle with its chequered career, which demonstrates the anguish of decree-holders to get a valid decree in their favour duly executed in full satisfaction through the machinery of law. The undisputed facts leading to these revisions, as submitted at the Bar, and as a matter of record, may be narrated as under:

In the year 1945, the money suit in O.S. No. 113 of 1945-46 was instituted against present judgment-debtor (defendant) by one Roopraj. On contest, that suit was decreed as prayed, by the Trial Court on 28-3-1949. That decree became final and binding between the parties. In the said O.S. No. 113 of 1945-46, three items of house property belonging to the judgment-debtor were attached before judgment. Therefore, those items of properties were the subject of charge under the said money decree dated 28-3-1949. Subsequently, decree-holder Roopraj filed execution petition in Ex. No. III of 1947-48 for execution of the said money decree. That Ex. No. III of 1947-48, in due course, came to be renumbered as Ex. No. 87 of 1954 on the file of the Executing Court. The said properties of the judgment-debtor were, in due course of execution, brought to auction sale on 5-4-1955. At the said Court auction, they were purchased by the decree-holder Roopraj for Rs. 41,711.40 as against decretal amount of Rupees 40,291 Annas 2 and paise 0, with permission of the Executing Court. Before confirmation of this sale in favour of decree-holder, I.A. No. 2 under Order 21, Rule 90 of the CPC was filed by the judgment-debtor on 23-5-1955 questioning the validity of the said auction sale. In the meantime, the said Ex. No. 87 of 1954 came to be made over to the Civil Judge''s Court at Bangalore from the District Court and was renumbered as Ex. No. 28 of 1964. The original decree-holder Roopraj died on 13-12-1963 and his son Karanraj was duly substituted in his place and was brought on record in the pending Ex. Case No. 28 of 1964.

On 5-6-1970, an order was passed by the Executing Court dismissing judgment-debtor''s I.A. No. 2 and confirming the said auction sale in favour of the decree-holder and sale certificate in respect of the said property was also issued to him on the same date.

The said order dated 5-6-1970 of the Court below was challenged by the judgment-debtor in M.F.A. No. 9 of 1971 before this Court which came to be allowed by order dated 31-3-1971 and the said I.A. No. 2 of judgment-debtor was remitted to the Executing Court for fresh disposal. Thereafter, again, the said I.A. No. 2 was dismissed on 4-3-1972 by the Executing Court by its considered order. That order was challenged by the judgment-debtor before this Court in Ex. F.A. No. 15 of 1972, which was renumbered as M.F.A. No. 517 of 1972. That appeal was allowed on 10-8-1972 and the matter was remitted to the Execution Court again for fresh disposal.

During pendency of the said M.F.A. No. 517 of 1972, a registered sale deed dated 22-4-1972 was executed by the successor decree-holder Karanraj in favour of one Phoolchand and two others in respect of one of the aforesaid three items of property, bearing Nos. 230 and 230-A, purporting to have sold the same to them for valuable consideration, showing the delivery of that house having been taken by the decree-holder under Order 21, Rule 95 of the CPC in Misc. Case No. 58 of 1970 pursuant to the said sale certificate dated 5-6-1970. Admittedly, the order of Execution Court dated 5-6-1970 confirming the sale against which appeal in M.F.A. No. 517 of 1972 was filed by the judgment-debtor, was not stayed therein.

After the said I.A. No. 2 of judgment-debtor was remitted to Execution Court by order dated 10-8-1972 of this Court in M.F.A. No. 517 of 1972, the said Ex. No. 28 of 1964 pending on the file of the Civil Judge''s Court at Bangalore came to be transferred to the City Civil Court, Bangalore, on its establishment, and the same was renumbered as Ex. No. 723 of 1987 on its file. Subsequently, in 1988, on the death of decree-holder Karanraj, his legal representatives-who are respondents 1 to 8 in these revisions, have been substituted and brought on record as the decree-holders in the said Ex. No. 723 of 1987. Thereafter, the Execution Court, by its considered order, dismissed the said I.A. No. 2 once again on 19-4-1997 and the said auction sale dated 5-4-1955 was confirmed by it in decree-holders'' favour. Its said order dated 19-4-1997 was again challenged by the judgment-debtor before this Court in M.F.A. No. 1616 of 1997 and the same was upheld and the appeal was dismissed by its order dated 5-11-1997. S.L.P. No. 3980 of 1998, filed by the judgment-debtor in Supreme Court against said order dated 5-11-1997 of this Court, also came to be dismissed by Supreme Court by its order dated 27-2-1998. Thus, the Execution Court''s said order dated 19-4-1997 became final.

It may be appropriate to recall here that before the said I.A. No. 2 of judgment-debtor was filed on 23-5-1955, a separate suit in O.S. No. 51 of 1952 was instituted by his wife and children against decree-holder to prevent him from executing the said decree and that the suit i.e., O.S. No. 51 of 1952, was subsequently withdrawn by them on 16-3-1955. Besides, another suit in O.S. No. 20 of 1955 was also filed against decree-holder by the minor children of the judgment-debtor represented by the guardian ad litem one Gopalakrishna for the relief of permanent injunction restraining the decree-holder from executing the said decree in his favour. It appears that, the said O.S. No. 20 of 1955 was dismissed for default and subsequently the same came to be restored by an order of the Trial Court passed in the miscellaneous proceeding which was initiated by the judgment-debtor''s said minor children, and then that suit was renumbered as O.S. No. 318 of 1962. However, it was finally dismissed on 8-6-1981. These independent legal proceedings which were initiated by the wife and children of the judgment-debtor against the decree-holder are not in dispute.

It was after the Execution Court''s order dated 19-4-1997 dismissing judgment-debtor''s I.A. No. 2 became final, which he filed his present application under Section 151 of the CPC on 12-3-1998 praying to recall the said order dated 19-4-1997 and to take up his I.A. No. 2 for fresh disposal on the ground that the order dated 19-4-1997 passed thereon has been vitiated as the fact of said sale of one of the three items of the house property on 22-4-1972 by the deceased decree-holder Karanraj made to a third party under the registered sale deed was fraudulently suppressed by him from the notice of the Execution Court during its enquiry on I.A. No. 2 and till before it was disposed of by its order dated 19-4-1997: the knowledge of which sale was acquired by the judgment-debtor on 6-3-1998 when he obtained C.C. of the said sale deed. Another ground of fraud urged in that application under Section 151 of the CPC was that a false statement was made by the decree-holder before this Court in said M.F.A. No. 1616 of 1997 that the mortgage debt of Rs. 19,000/- payable by the judgment-debtor to the State Bank of Mysore in respect of a certain mortgage loan transaction, was cleared by him (decree-holder), while in fact it was discharged by the judgment-debtor himself.

On 12-3-1998, the decree-holders also filed their application under Order 21, Rule 95 of the CPC before the Execution Court in pending Ex. No. 723 of 1987 seeking delivery of possession of the said property.

The learned Judge of the Executing Court has, after hearing arguments of both parties, passed a detailed considered order dated 10-2-1999 rejecting judgment-debtor''s said application under Section 151 of the CPC both on its merit and on the technical ground that once the said auction sale was confirmed by the said order dated 19-4-1997 after rejecting I.A. No. 2 of judgment-debtor, his subsequent application to reopen the same was not maintainable in law, and more so when the decree-holder''s said application under Order 21, Rule 95 of the CPC has been allowed directing delivery of the said three items of property to them in accordance with law. It is that order dated 10-2-1999 of the Court below which has been challenged by the judgment-debtor in these C.R.P. Nos. 715 and 716 of 1999, respectively.

Let me first deal with the legality and correctness of the impugned order of the Execution Court passed rejecting judgment-debtor''s application under Section 151 of the CPC which was filed by him on 12-3-1998. Mr. A. Krishna Bhat, learned Counsel for common petitioner- judgment-debtor, argued at length vehemently contending that the judgment-debtor was entitled to maintain his present application under Section 151 of the CPC and that on the grounds of fraud stated therein, the Executing Court''s order dated 19-4-1997 rejecting his I.A. No. 2 and confirming the said auction sale in favour of decree-holder is, in fact and in law, vitiated and as such it is liable to be set aside. Reliance had been placed by him on the decisions of the Supreme Court in Banwari Lal v Smt. Chando Devi, AIR 1993 SC 1139; State of Maharashtra v Dr. Budhikota Subbarao, (1993)2 SCC 567; S.P. Chengalvaraya Naidu (Dead) by L.Rs v Jagannath (dead) by L.Rs, AIR 1994 SC 853;Indian Bank v M/s. Satyam Fibres (India) Private Limited, AIR 1996 SC 2592 and United India Insurance Company Limited v Rajendra Singh, ILR 2000 Kar. 1929 (SC).

14.Per contra learned Counsel for respondent decree-holders, argued supporting the impugned order of the Court below. He also relied on the decisions of Supreme Court in Pattam Khader Khan v Pattam Sardar Khan, (1996)5 SCC 48 ;Harnandrai Badridas v Debidutt Bhagwati Prasad, AIR 1973 SC 2423 ;Binayak Swain v Ramesh Chandra Panigrahi and Ganpat Singh (dead) by L.Rs v Kailash Shankar, AIR 1987 SC 1443 .

For effective consideration of the legality and correctness or otherwise of the impugned order of the Court below, it is essential to examine the same in the perspective of the legal position emerging from the provisions of relevant Rule 90 of Order 21 of the CPC, which are reproduced below:

"90. Application to set aside sale on ground of irregularity or fraud.-(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Explanation.-The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule".

The above provisions and other related provisions of CPC as well make it abundantly clear that an auction sale of the property conducted by the Executing Court in execution of a decree in accordance with the provisions of Order 21 could be challenged by the decree-holder, or the purchaser or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, only on two grounds. They are: (1) on the ground of material irregularity; or (2) on the ground of fraud in publishing or conducting the sale. Sub-rule (2) of Order 21, Rule 90 of the CPC places a rider on setting aside the Court''s sale of the property on the above grounds of material irregularity or fraud in publishing or conducting it, that no such sale shall be set aside on the said grounds unless, upon the proved facts, the Court is satisfied that the applicant, who seeks setting aside of the sale, has sustained substantial injury by reason of such irregularity or fraud. Furthermore, sub-rule (3) of Order 21, Rule 90 creates a legal embargo for the Executing Court to entertain an application to set aside a sale under Order 21, Rule 90(1) on either of the aforesaid grounds if it was or they were already available to the judgment-debtor on or before the date on which proclamation of sale was drawn up and he could have pressed the same at that stage of the proceeding itself. This apart, sub-rule (1) of Order 21, Rule 90 of the CPC makes it manifest that Court sale cannot be challenged by any interested person enumerated therein on any and every kind of fraud. The fraud on which such sale could be challenged must be specifically in respect of publishing of the sale proclamation under Rules 66 and 67 of Order 21 of the CPC or in conducting of the sale by the concerned Court official in the manner provided by Rule 65 thereof.

In this present application under Section 151 of the CPC, dated 12-3-1998, the judgment-debtor intends to indirectly challenge the Court''s said sale conducted on 5-4-1955 in the fact of the said binding order dated 19-4-1997 confirming the said sale, on the plea of fraud, in that, the fact of sale of one of the three items of the property by the decree-holder made on 22-4-1972 to one Phoolchand and two others was not disclosed by him to the Court during its enquiry on judgment-debtor''s I.A. No. 2 and had it been disclosed at that stage of the proceeding, probably the Execution Court could have had held the alleged fraud as the one stipulated under sub-rule (1) of Order 21, Rule 90 of the CPC as vitiating the said auction sale and thereupon the Court below would have allowed that I.A. No. 2 instead of dismissing it on 19-4-1997. At once, it may be pointed out that the fraud so alleged, on the face of it, does not pertain to the act of publishing of the sale or conducting of it as envisaged in sub-rule (1) of Order 21, Rule 90. Therefore, even assuming for a moment that non-disclosure of the fact of said sale dated 22-4-1972 by the decree-holder was in any manner a fraud in terms of the law of fraud as was sought to be made out by Mr. A. Krishna Bhat, then also it would be totally irrelevant and outside the scope of Order 21, Rule 90 of the CPC. As noticed already, the fraud which is contemplated within this provision of law exclusively relates to publishing or conducting of the Court''s sale. These two acts of publishing and conducting of sale by the Execution Court are its acts which are antecedent to the actual date and the time of sale held on 5-4-1955. Therefore, for any fraud to affect the legality or propriety of the auction sale must occur prior to the date and the time at which it was conducted. From this angle also, the alleged fraud of the said sale by the decree-holder on a subsequent dated 22-4-1972, pleaded by the judgment-debtor in his present application, is wholly immaterial and irrelevant for attacking the legality or validity of the said Court''s sale held on 5-4-1955, let alone the question of further probe whether judgment-debtor sustained any substantial injury by reason of the alleged fraud justifying setting aside of that sale. Thus, even when this plea of alleged fraud is considered independently on its merits, we find it untenable for the purpose of recalling the said order dated 19-4-1997 of the Court below by which judgment-debtor''s I.A. No. 2 has been dismissed.

I have gone through all the aforementioned decisions of the Supreme Court relied on by Mr. A. Krishna Bhat and I find none of them bearing any relevance to the point at issue in the light of Order 21, Rule 90 of the CPC. In Banwari Lal''s case, the Supreme Court has said that, when a compromise under Order 23, Rule 3 of the CPC, recorded in the suit was found to be fraudulent, then it shall be deemed to be void within the meaning of explanation to the provision to Rule 3 and in that event, the affected party could challenge the same by making an application under Section 151 of the CPC. Evidently, this proposition is inapplicable to the present case.

In State of Maharashtra, and in S.P. Chengalvaraya Naidu''s case, the settled proposition of law that fraud avoids all judicial acts and that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law, has been reiterated, about which there cannot be any dispute. Similar is the pronouncement of the Supreme Court in Indian Bank and in United India Insurance Company Limited''s case. In none of these decisions, a specific fraud stipulated under sub-rule (1) of Order 21, Rule 90 of the CPC was the subject of consideration of their Lordships of the Supreme Court. So, these authorities will not help the case of judgment-debtor. Therefore, the first plea of fraud raised by the judgment-debtor in the present application has to be rejected outright and the same has been rightly done so by the Court below.

Now adverting to the next plea of fraud urged in the application of the judgment-debtor, it relates to the statement of decree-holder made before this Court in the said M.F.A. No. 1616 of 1997, to the effect that the said debt of Rs. 19,000/- which was payable by the judgment-debtor to the State Bank of Mysore was also discharged by him (decree-holder). The contention of Mr. A. Krishna Bhat was that, as a matter of fact, the said debt amount was not paid by the decree-holder, but in fact the same was paid over to the Bank by one Nariman A. Palya on 1-8-1996 to whom another property of judgment-debtor was mortgaged. This contention has also been considered and dealt with by the Court below in sufficient detail and it is held as liable to be rejected as not a valid ground available for the judgment-debtor. It is the case of judgment-debtor himself that the said debt was existing when I.A. No. 2 was pending and that the same was discharged in 1966, i.e., long before the enquiry on I.A. No. 2 was commenced by the Court below and the same was disposed of finally by its order dated 19-4-1997. Curiously, there was no such plea raised by him in the execution proceeding till then. Nor was it urged before this Court in M.F.A. No. 1616 of 1997 which was filed by him against the said order dated 19-4-1997 of the Court below. On the other hand, this Court''s order dated 5-11-1997, by which the said M.F.A. No. 1616 of 1997 has been disposed of, clearly discloses at paragraph 8 that discharge of said debt of Rs. 19,000/- by the decree-holder was, in fact, admitted by the judgment-debtor before this Court. Therefore, it is too much for him now to turn around and raise such a contention in his present application blowing hot and cold in the same breath with the avowed object to defeat the said decree dated 28-3-1949 passed in favour of the decree-holders. He is estopped from so doing. Therefore, the Execution Court is justified in rejecting the same as of no avail to the judgment-debtor.

Now coming to the maintainability of the judgment-debtor''s application under Section 151 of the CPC filed on 12-3-1998, the Court below has justifiably held the same as not maintainable in law after the said auction sale was confirmed by its order dated 19-4-1997, and which had attained finality. Once the sale was so confirmed, it becomes absolute by virtue of Rule 92 of Order 21 of the CPC. The material portion whereof reads:

"92. Sale when to become absolute or be set aside.-(1)

When no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute:

Provided...................

(2) to (5).................".

In the case of Ganpat Singh, the Supreme Court has ruled that such an application will be barred by the principle of res judicata. To wriggle out of this situation, Mr. A. Krishna Bhat attempted to canvass that the application been made under Section 151 of the CPC is independent of judgment-debtor''s said I.A. No. 2 and the order of the Execution Court passed thereon. It cannot be treated as a second application under Order 21, Rule 90 of the CPC. This is a preposterous argument which warrants its outright rejection. The application speaks for itself that it is made with a prayer to set aside the said final and binding order dated 19-4-1997 of the Court below passed disposing of judgment-debtor''s I.A. No. 2 and confirming the said sale in decree-holder''s favour. Just to circumvent the due process of law, it was the sheer ingenuity of the judgment-debtor, who is a hardened litigant, that the application was styled as the one filed under Section 151 of the CPC. The prayer made therein undoubtedly makes it the second application filed seeking setting aside of the said auction sale dated 5-4-1955 of his property which prayer of his made in I.A. No. 2 was already rejected. Therefore, his present application is clearly barred by the principle of res judicata also.

Apart from the above salient material legal infirmities in the judgment-debtor''s case of alleged fraud sought to be set up in his application under Section 151 of the CPC, it suffers from another vital infirmity. Obviously, the fact of said sale dated 22-4-1972 by the decree-holder of one of the three items of the property to one Phoolchand and two others, in the circumstances, is not at all a material fact for the purpose much less amounting to fraud. The said sale transaction between the decree-holder and the vendees thereunder has not at all resulted in any injury whatever to the interest or liability of the judgment-debtor under the said decree dated 28-3-1949 followed by confirmation of sale of his said properties under the said order dated 19-4-1997. If at all, any person who could have any complaint or grievance of fraud against decree-holder for the so-called said sale of the house property under the said sale deed, he could be the vendee thereunder and none else. Therefore, in the facts and circumstances, I find that the case of alleged fraud set up by the judgment-debtor in his subsequent application is nothing but farcical invented with the oblique motive to frustrate execution of the said decree against him, he having failed in all his earlier attempts to do so. That he resorted to make such an application is nothing but sheer abuse of the process of the Court on his part. Therefore, his application is liable to be dismissed in limine with exemplary cost which could be reasonably fixed at Rs. 5,000/-.

For all the reasons aforestated and discussed, I find the impugned order rejecting the judgment-debtor''s present application under Section 151 of the CPC is entitled to be upheld and the revision filed against the same is devoid of merit.

Now, let me deal with that portion of the Execution Court''s common order dated 10-2-1999 whereby the decree-holder''s application under Order 21, Rule 95 of the CPC made on 12-3-1998 has been allowed and which has been assailed by the judgment-debtor in C.R.P. No. 716 of 1999. This application was stoutly opposed by the judgment-debtor by filing his statement of objections thereto. It is an undisputed fact that when judgment-debtor''s said I.A. No. 2 under Order 21, Rule 90 of the CPC was first rejected on 5-6-1970 by the Execution Court, the said sale was confirmed in favour of the decree-holder under the very same order. Thereafter, on 25-6-1970 even the sale certificate was also issued to him. Then, he had made his application under Order 21, Rule 95 of the CPC in Misc. Case No. 58 of 1970 seeking delivery of possession of the said property, and in that proceeding, possession of one of the items of said three premises viz., house bearing No. 522/2 was shown to have been delivered to the decree-holder Karanraj, since deceased, on 26-6-1970 as borne out by his delivery receipt dated 26-6-1970, the bailiffs report dated 30-6-1970, and the connected proceeding, which are available at page Nos. 209 to 212, 205, 203 and 204 respectively in the original record of the Court below. It was therefore, contended for the judgment-debtor before the Execution Court that the delivery of the property having already been taken by the decree-holder on 22-6-1970 in the said Misc. Case No. 58 of 1970 in execution of the said decree, the second application under Order 21, Rule 95 of the CPC now made by him on 12-3-1998, is not maintainable in law. On the other hand, it was argued for the decree-holder that the said first order dated 5-6-1970 of the Court below by which judgment-debtor''s I.A. No. 2 under Order 21, Rule 90 of the CPC was disposed of, having been set aside by the High Court in M.F.A. No. 517 of 1972 by its order dated 10-8-1972 remitting the matter to the Court below for fresh disposal of said I.A. No. 2 of the judgment-debtor, the entire proceedings in the said Misc. Case No. 58 of 1970 became non est and wiped out in the eye of law. It was further maintained for the decree-holder that in view of this legal position, the decree-holder''s second application under Order 21, Rule 95 of the CPC filed on 12-3-1998 subsequent to the execution Court''s said order dated 19-4-1997 was for all legal purposes, itself the first application filed seeking delivery of the said property to the decree-holder and that the same cannot be stated as not maintainable. This contention of decree-holder has been considered and accepted by the Court below.

Mr. A. Krishna Bhat, reiterating the same objection that was raised for the judgment-debtor in the Court below attacking the decree-holder''s present application under Order 21, Rule 95 of the CPC strenuously argued that the impugned order of the Court below is vitiated by patent illegality and has to be set aside by allowing the judgment-debtor''s revision. Substantiating this contention, he submitted that in paragraph 8 of the affidavit of decree-holder filed in support of the present application dated 12-3-1998, and from the recital in the said sale deed dated 22-4-1972 executed by the decree-holder in respect of one of the items of the suit properties, it remains admitted on the part of the decree-holder that possession of the property was taken by him in Mis. Case No. 58 of 1970. At once, it has to be stated that the so-called admission of this fact on the part of the decree-holder on which Mr. A. Krishna Bhat wanted to make out a case of delivery of possession of the property is an ambiguous admission which does not give a clear picture of the actual state of affairs. At paragraph 8 of the said affidavit dated 12-3-1998 of one of the present decree-holders, it is averred that:

"8........ the physical possession was handed over to my father in the year 1972, the same could not be sustained because of the pendency of I.A. No. 2 filed by the judgment-debtor, as such, the judgment-debtor is in actual possession of the schedule properties".

This averment that physical possession was handed over in the year 1972 to the father (Karanraj) of the deponent decree-holder does not make any clear sense, in that, it does not disclose whether possession of all items or of any particular item of the three properties in question was taken by the deceased decree-holder Karanraj. Furthermore, the statement that physical possession was taken in the year 1972 does not find support of the record of the proceeding in the said Mis. No. 58 of 1970. Therefore, this statement in the affidavit to the effect that possession of the property was taken by the decree-holder smacks of ignorance of the deponent about the fact of taking delivery or otherwise

of the property. Besides, as was noticed, only one item of the house property bearing No. 522/2 was shown in the record of Misc. No. 58 of 1970 as delivered to the decree-holder. But, in the said sale deed dated 22-4-1972 executed by decree-holder late Karanraj in favour of one Phoolchand and two others, it is stated that the house property sold to them was property item No. 3 bearing House No. 230/230-A which is obviously the property different from the House No. 522/2. At any rate, one fact which stands out indisputable is that under the proceedings in Mis. No. 58 of 1970 it was only one item of house properties in question, bearing House No. 522/2, which was shown to have been delivered to the decree-holder and not all the said three items of the properties of the judgment- debtor.

Nonetheless, admittedly, the truth of the matter is that, the judgment-debtor himself happens to be in continuous actual and exclusive physical possession of all the three items of his said house properties throughout, as sworn to by one of the decree-holders at paragraph 8 of his said affidavit filed in support of the decree-holder''s present application under Order 21, Rule 95 of the CPC and which fact has been plainly admitted in the Court below in unequivocal terms by the judgment-debtor himself in his examination-in-chief while giving his evidence as D.W. 1 on 25-7-1989 in support of his said I.A. No. 2 during enquiry (vide sheet No. 152 of the LCR), as under:

"......... I am presently residing in one of the above said three properties, which is situated by the side of M.E.S. College at Malleshwaram ......... The other two properties are let out and I am getting the total rental amount of about Rs. 2,500 per month....".

Thus, the testimony of D.W. 1 judgment-debtor given on 25-7-1989 long after 22-6-1970-when one of the said three items of property was shown in Misc. Case No. 58 of 1970 as delivered to the decree-holder on his application under Order 21, Rule 95 of the CPC (made during pendency of judgment-debtor''s said Ex. F.A. No. 15 of 1972 converted into M.F.A. No. 517 of 1972 on the file of this Court). Therefore, the convincingly proved and admitted fact is that all the said three items of property are in undisturbed possession and enjoyment of the judgment-debtor himself without interruption since the passing of said decree under execution against him. This is the _ factual position obtainable from the record. As regards the whole proceeding in said Misc. Case No. 58 of 1970 and the effect of record therein disclosing delivery of possession of one item out of the said three items of the property is concerned, as has been rightly held by the Court below, the same became non est and stood wiped out as a result of the Executing Court''s said order dated 5-6-1970 having been set aside by this Court by its order dated 10-8-1972 passed allowing judgment-debtor''s M.F.A. No. 517 of 1972, and remitting his I.A. No. 2 to the Court below for its fresh disposal. Therefore, all the proceedings in Mis. Case No. 58 of 1970 are of no legal effect and will have to be treated as non-existent in law. As a result, the order dated 19-4-1997-by which said I.A. No. 2 was dismissed and which has attained its finality on confirmation by this Court in M.F.A. No. 1616 of 1997 and dismissal of said S.L.P. No. 3980 of 1998 on 27-2-1998, is the only existing valid order on record which is material for the purpose of determination of the question whether the decree-holder''s application under Order 21, Rule 95 of the CPC filed on 12-3-1998 is maintainable or not.

The judgment-debtor filed his statement of objections to this application of the decree-holder resisting it on the ground that it is not maintainable since a similar application under Order 21, Rule 95 of the CPC had been already filed by him in Misc. Case. No. 58 of 1970 where he was shown to have taken delivery of the properties. As pointed out earlier, this objection of the judgment-debtor has been considered and overruled by the Court below for the reason that the entire proceeding in the said Misc. Case. No. 58 of 1970 is of immaterial consequence and has no existence in the eye of law. This finding of the Execution Court has been upheld by me on the conclusions arrived at hereinabove.

Rule 92 of Order 21 read with Section 65 of the CPC declare the law that the Court sale made in favour of auction purchaser becomes absolute only when an order confirming the sale thereof in his favour was made by the Execution Court and that then alone which the purchaser becomes absolute owner of the property and also that his ownership in law relates back to the date of his purchase thereof at the auction sale. The title to the property thus passes to the purchaser by the operation of law. The Supreme Court has in Municipal Corporation of Delhi v Pramod Kumar Gupta, AIR 1991 SC 401, held:

"5.....It is manifest that the title passes under the auction-sale by force of law and the transfer becomes final when an order under Rule 92 confirming it is made.........".

According to Rule 95 of Order 21 of the CPC, it is only after the sale is so confirmed, the purchaser would get a right to apply under this provision for delivery of the property so sold to him. In view of this legal position also, the proceeding for delivery of possession of the property initiated by the decree-holder purchaser in the said Misc. Case No. 58 of 1970 was void in law and any order passed therein by the Execution Court was without jurisdiction of the Court below and was a nullity. Therefore, in view of this resultant legal position, the decision of this Court in P.K. Narasimha Iyengar v P.K. Ramaswamy Iyengar, cited by Mr. A. Krishna Bhat, learned Counsel for judgment-debtor, where it is held that:

"Under Order 21, Rule 95 of the CPC, when the purchaser who is entitled to actual possession, is given symbolical possession, it is effective delivery within this rule as against the judgment-debtor and persons claiming under him. The remedy of the purchaser who is obstructed by them thereafter is to file a suit against them and recover possession within 12 years.....".

Has no relevance to the factual and legal situation obtainable in this case. For the very same reason, the authority in Shew Bux Mohata and Another v Bengal Breweries Limited and Others, AIR 1961 SC 137, cited by Mr. A.K Bhat for the proposition that where possession of property is accepted by the decree-holder with the judgment-debtor in possession thereof, the decree is deemed to have been satisfied, is inapplicable to this case. Likewise, the Supreme Court decision in Lal Chand v VIII Additional District Judge and Others, AIR 1997 SC 2106, reiterating the law relating to the extent of the property which could be sold in execution proceeding for satisfaction of the decree, is obviously not a relevant authority for our purpose.

Another decision of Supreme Court in Pattam Khader Khan''s case, supra, was cited by Mr. A. Krishna Bhat for the proposition that limitation period for making an application under Order 1, Rule 95 of the CPC by the auction purchaser for delivery of possession of the property in an execution proceeding commences from the date when the sale becomes absolute and not from the date when sale certificate is issued. There is no dispute about this proposition. It was not the case of Mr. Bhat, and rightly so, that the decree-holder purchaser''s application filed under Order 21, Rule 95 of the CPC on 12-3-1998 seeking delivery of the property was not in time and was barred by limitation. Nevertheless, to keep this aspect also clear, I deem it just and proper to consider it also. Article 134 of the Limitation Act, 1963 provides for the limitation period for such an application to be made in execution of a decree. It lays down the limitation period of one year from the date when the sale of the property becomes absolute, for an application to be made for delivery thereof by the purchaser. According to this provision, the limitation period for the application starts running from the date when sale becomes absolute on its confirmation under Order 21, Rule 92(1) of the CPC. In this case, the sale became absolute was 19-4-1997 on which date the confirmation order was passed by the Execution Court. The application for delivery of the property under Order 21, Rule 95 of the CPC was filed by the decree-holder purchaser on 12-3-1998. It was made well-within the limitation period of one year commencing from 19-4-1997 (vide Pattam Khader Khan''s case, and Chandubhai Malubhai Parmar v State of Gujarat).

Another related legal aspect of the matter which crops up for my consideration is whether the decree-holder was entitled to maintain his said application dated 12-3-1998 without first obtaining the sale certificate on confirmation of sale in his favour by order dated 19-4-1997, since we do not find any further order of the Court below directing issue of sale certificate to him following its said order dated 19-4-1997. Rule 94 of Order 21 of the CPC relates to grant of sale certificate. It reads:

"94. Certificate to purchaser.-Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute".

As could be seen from the provisions of Order 21, Rule 95 read with Section 65 of the CPC, the right to seek delivery of the said purchased property accrues to the decree-holder purchaser on confirmation of the sale by the Executing Court on 19-4-1997, as he became absolute owner thereof by reason of that confirmation order. And by the deeming fiction of Section 65 of the CPC, the property vested in him from the time when it was sold to him at the auction sale on 5-4-1955. Tersely stated, in law, the decree-holder purchaser became absolute owner of the said purchased property on and with effect from 5-4-1955 and that the judgment-debtor is in unlawful occupation thereof since then and has been illegally enjoying the profits and income therefrom for all these over 45 years. It therefore, becomes clear that the issuance or non-issuance of the certificate of sale by the Execution Court under Rule 94 of Order 21 of the CPC is immaterial for the purpose of maintaining the application under Order 21, Rule 95 by the purchaser, since the certificate of sale is not a document of title in law and it is merely a document evidencing the fact of sale in accordance with the provisions of Order 21 of the CPC. This proposition enjoys the support of the law enunciated by Supreme Court in Pramod Kumar Gupta''s case, supra, at paragraph 5 of its judgment, where it is held:

"5........ It is manifest that the title passes under the auction-sale by force of law and the transfer becomes final when an order under Rule 92 confirming it is made. By the certificate issued under Rule 94, the Court is formally declaring the effect of the same and is not extinguishing or creating title. The object of issuance of such a certificate is to avoid any controversy with respect to the identity of the property sold, and of the purchaser thereof as also the date when the sale becomes absolute. The use of past tense in the rule stating that the sale"became"absolute, is inconsistent with this interpretation. The certificate, therefore, cannot be termed to be an instrument of sale so as to attract duty under Section 147 of the Delhi Municipal Corporation Act.......".

As a necessary legal corollary, it follows that the certificate of sale contemplated under Rule 94 of Order 21 of the CPC could be issued by the Execution Court any time either at or after confirmation of the sale and that it can be so issued to the decree-holder purchaser even during pendency of his present application under Order 21, Rule 95 of the CPC. Therefore, for all these reasons, his said application made before the Court below is perfectly maintainable in law. The Execution Court is bound to proceed to deliver the properties in question to the auction purchaser as prayed in his application.

The other two authorities cited by the learned Counsel for respondents in Harnandrai Badridas case and Binayak Swain''s case, are not relevant for decision of the material points in these revision. In that view of the matter, the revision filed by the judgment-debtor against the order of the Court below allowing decree-holder''s application dated 12-3-1998 under Order 21, Rule 95 of the CPC is also devoid of merit.

Mr. Poonacha, learned Counsel for respondents-decree-holders, as a last limb of his argument, argued that the course of various legal proceedings referred to above undoubtedly indicates that the judgment-debtor is hell bent in frustrating and defeating the execution of the said valid decree dated 28-3-1949 by resorting to various dubious litigations and by filing frivolous applications one after another. This amounts to abuse of the process of Court by him. He submitted that this cantankerous conduct of the judgment-debtor in persistently abusing the process of Court, in turn, amounts to contempt of Court and, therefore, he is liable to be punished for this conduct under Contempt of Courts Act, 1971. Support for this contention was drawn by him from a Division Bench decision of this Court in Vijaya Bank Employees Housing Co-operative Society Limited v Muneerappa, 1990(2) Kar. L.J. 513 (DB) and a decision of the Supreme Court in Advocate General, State of Bihar v M/s. Madhya Pradesh Khair Industries, AIR 1980 SC 946. No doubt, it is laid down by these decisions that abuse of the process of the Court calculated to hamper due course of the proceedings and the administration of justice is a Contempt of Court which renders the contemnor punishable for civil or criminal contempt depending upon the peculiar facts of a case. But then, I have concluded above that the judgment-debtor has to be visited upon with exemplary cost of Rs. 5,000/- and, therefore, in the facts and circumstances, I find this imposition of cost as sufficient to deter the judgment-debtor from resorting to such tactics on the pretext of defending the execution proceedings against him and his properties.

In the result, for all the reasons stated above, both these revisions are dismissed with cost of Rs. 5,000/- payable by the petitioner to the respondents, decree-holders, and the same shall be paid by him to the latter in the execution proceeding pending against him on the file of the Court below.