Fateh Singh vs Sheela Devi and Others

L.N. Mittal, J.—Plaintiff Fateh Singh having lost in both the courts below has filed this second appeal. Plaintiff-appellant filed suit against Raj Kumar-defendant (since deceased and represented by respondents as his legal representatives). Decree for recovery of money was passed in a previous suit in favour of Raj Kumar against Fateh Singh present plaintiff-appellant. In execution of said money decree, land of the appellant herein was sold by auction. Sale became final and was confirmed by the executing Court. Sale certificate regarding 20 Kanals land was issued in favour of Raj Kumar (decree holder/auction purchaser).

In the instant suit, the plaintiff-appellant alleged that he had 2/7th share in 196 Kanals 8 Marlas land out of which 1/7th share of 196 Kanals 8 Marlas land was attached. However, auction sale was held regarding 1/7th share of 20 Kanals land, but sale certificate has been issued regarding 20 Kanals land. The plaintiff accordingly sought declaration that he is owner in possession of 20 Kanals land to the extent of his 2/7the share and the auction sale dated 23.02.2002 is wrong and illegal and sale certificate is valid for only 1/7th share of 20 Kanals land and the said sale certificate dated 31.05.2002 regarding entire 20 Kanals land is wrong and illegal.

The defendants resisted the suit and controverted the plaintiff''s averments. The defendants admitted that 1/7th share of 196 Kanals 8 marlas land was attached in execution proceedings. Plaintiff herein (judgment debtor in the previous case) was in exclusive possession of 20 Kanals land which was put to auction in lieu of his share in the total land. The said suit land measuring 20 Kanals was of inferior quality and nobody was ready to bid at the auction which was conducted many times. Ultimately defendant who was decree holder in that case sought permission from the executing Court to bid at the auction and purchased the suit land being highest bidder. The sale stands confirmed and sale certificate has been issued. The defendant defended the auction sale as well as the sale certificate as legal and valid.

Learned Civil Judge (Junior Division), Budhlada vide judgment and decree dated 15.12.2010 dismissed the plaintiff''s suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Mansa vide judgment and decree dated 24.01.2012. Feeling aggrieved, plaintiff has filed this second appeal.

I have heard Learned Counsel for the appellant and perused the case file.

Counsel for the appellant vehemently contended that sale was not conducted properly and decree holder could not bid in the auction sale as no permission was sought from the executing Court by the decree holder and therefore, the impugned sale as well as sale certificate are liable to be set aside. Reliance has been placed on judgment of Andhra Pradesh High Court in the case of Penmatsa Janikamma and another versus Atchanta Bulleyya reported as 1985 AIR (AP) 234. It was also contended that the plaintiff appellant had also moved the executing court by filing application u/s 47 of the CPC (in short, CPC) for setting aside the auction sale but the said application was dismissed by the executing Court on the ground that the said Court had become functus officio. It was contended that if the instant suit is not entertained, the plaintiff-appellant would have no remedy.

I have carefully considered the aforesaid contentions but find myself unable to accept the same. Any person whose interest is effected by sale of immovable property in execution of decree may apply to the executing court to set aside the sale under Order 21 Rule 90 CPC on the grounds mentioned therein. Order 21 Rule 92(1) CPC further provides that where no such application is made or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Order 21 Rule 92(3) CPC further stipulates that no suit to set aside an order made under this Rule shall be brought by any person against whom said order is made. Combined reading of these provisions leaves no room for doubt that instant suit to challenge the sale which was confirmed in the execution proceedings is maintainable. The impugned sale was confirmed and made absolute under Order 21 Rule 92(1) CPC in the execution proceedings. Consequently, the said order confirming the sale cannot be challenged by way of instant suit in view of Order 21 Rule 92 (3) CPC. Judgment in the case of Penmatsa Janikamma (supra) is of no help to the appellant because in that case, it was held that appropriate relief could be granted to the auction purchaser in his application u/s 47 CPC. In the instant case, however, the plaintiff-appellant who was judgment debtor in the execution proceedings, did not file any such application either u/s 47 CPC or under Order 21 Rule 90 CPC before the sale was confirmed and made absolute. Consequently instant suit to set aside the sale effected and confirmed in execution of decree is not maintainable. If the plaintiff appellant finds himself without any remedy, he is to blame himself for this situation. He should have assailed the sale in execution proceedings at appropriate stage. He did not do so. The sale has attained finality.

The instant suit leading to the instant second appeal is completely frivolous. Such frivolous litigation has to be discouraged and curbed with strong hand. Litigants cannot be permitted to indulge in frivolous litigation so as to clog the Courts which are already over burdened. Litigation has to attain finality although it is not likely to be to the liking of one party. However, the losing party cannot be permitted to indulge in second round of litigation without any justification after one round of litigation has attained finality. The instant second round of litigation generated by plaintiff-appellant is completely frivolous. For the reasons aforesaid, I find no merit in this second appeal. Impugned judgments of the Courts below do not suffer from any error so as to call for interference. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Plaintiff has been rightly non-suited by the courts below. The appeal is not only meritless but is also frivolous and is, therefore, dismissed in limine with cost of Rs. 5,000/- to be deposited by the plaintiff-appellant with the Registry of this Court within one month from today failing which the case shall be listed for this purpose.