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Judgment
R.S. Garg, J.
The petitioners being aggrieved by the order dated 29.10.2007 passed in M.J.C. No.31/03 arising out of the execution proceedings, rejecting the petitioners'' objections filed against the auction purchaser''s application filed under Order 21 Rule 95 CPC, have come to this Court under Article 227 of the Constitution of India.
The necessary facts for disposal of the present petition are that respondent No.2 Murari Lal Patel and respondent No.3 Smt. Ram Kumari Bai had taken some loan from respondent No.5 Zila Sahkari Bhoomi Vikas Bank, Jabalpur. Said Bhoomi Vikas Bank has filed some dispute before the Co-operative Court and obtained a decree. The property which was mortgaged with respondent No.5 was put to auction and it is alleged that respondent No.4 Awtar Singh has purchased the property and, in time, had transferred the property in favour of the present petitioners. It is also not in dispute before us that respondent No.2 and 3 had taken loan from respondent No.1 Bank of Baroda. The same property was mortgaged with respondent No.1. As loan was not repaid and the liability was not discharged, the respondent No.1 Bank of Baroda filed a Civil Suit for recovery of the money by putting the property to auction. The suit was decreed and after some hassle the property was put to auction. The respondent No.6 came out to be the successful auction purchaser. It is also not in dispute before us that the present petitioners had filed certain objections under Order 21 Rule 90 CPC. The said objections came to be dismissed for want of prosecution and the sale was confirmed on 13.1.1999. However, on an application filed by the present petitioners/ objectors the ex-parte order was recalled and objectors were given appropriate permission to press their objections. The said objections came :o be rejected on 20.11.2001. The said order of rejection was challenged in the Civil Revision, but however, the revision was withdrawn as infructuous. It is to be noted that the predecessor in title of the objectors was arrayed as defendant in original suit but as he did not contest the matter, an ex-parte decree was passed and his application under Order 9 Rule 13 CPC also came to be rejected. After the petitioners'' objections filed under Order 21 Rule 90 CPC were rejected sale certificate was issued in favour of the auction purchaser. The objectors thereafter filed an application u/s 151 CPC which came to be rejected on 14.3.2003. Their objections u/s 47 CPC were also rejected on 10.7.2002. After all the objections were rejected, the auction purchaser filed an application under Order 21 Rule 95 CPC with, a submission that the possession be delivered in his favour. The objectors again appeared on the scene and submitted before the Court that as application was not filed within one year from the date of confirmation of sale, the application became barred by limitation and possession could not be given to the auction purchaser, but however, the auction purchaser would be entitled to file a suit and obtain possession.
Apart from this issue, the question relating to sale deed executed in favour of objector/respondent No.4 was also raised and it was also submitted that the question relating to bona-fide purchase by the auction purchaser, be also decided.
For proper decision in the matter the executing Court framed the following issues:
(i) Whether the objectors in view of the sale certificate issued by District Co-operative Bank are entitled to protect their possession,
(ii) Whether Hari Narayan Vishwakarma is bona-fide purchaser of the property.
(iii) Whether the application filed by Hari Narayan Vishwakarma was barred by limitation.
After hearing the parties and taking into consideration the earlier orders passed by the said Court, the rejection of the earlier objections and illegal possession, the Court came to the conclusion that the objections were meritless. The Court accordingly rejected all the objections.
Shri Nitin Pendharkar learned counsel for the objectors, however submitted that if the date of confirmation of sale was 13.1.1999 then the application filed on 16.9.2003 is patently barred by limitation. It is also submited by him that rejection of the objections filed under Order 21 Rule 90 would not operate as resjudicata and the petitioners would be entitled to challenge the confirmation of sale, so also the auction purchasers'' application for delivery of possession. In alternative, it is submitted that if the order dated 13.1.1999 confirming the sale was set side then a fresh order was required to be passed and, as the fresh order confirming the sale was not passed, the auction perchaser would not be entitled to any relief.
Learned counsel for the respondents, on the other hand, submitted that the objections have been rightly rejected. It is also submitted by them that if the predecessor in title of the present petitioners had not contested the matter and allowed the proceedings to go ex-parte and the judgment had became final then the predecessor in title Awtar Singh, would not be entitled to challenge the sale or the application for delivery of possession. It is also submitted by them that the arguments raised by Shri Pendharkar are mutually destructive because one argument is that the application for delivery of possession is barred by limitation while on the other hand it is being submitted that sale was never confirmed.
We have heard the parties at length and perused the records.
Undisputedly, Awtar Singh was joined as defendant in the suit filed by Bank of Baroda and the decree was passed in favour of Bank of Baroda and in execution of the said decree, Hari Narayan Vishwakarma, the respondent No.6, has purchased the property. If Awtar Singh who had purchased the property from Zila Sahkari Bhoomi Vikas Bank, the respondent No.5 then he was obliged to appear in the Court and protect his title by contesting the matter. For the reasons best known to him he allowed the proceeding to go ex-parte and did not challenge the order passed on his application filed under Order 9 Rule 13 CPC. If the original owner, who had transferred the property in favour of the objectors has not challenged the decree passed in the suit filed by the Bank of Baroda nor camp to protect his title then a person claiming his title through Awtar Singh would not be allowed to say that they have better title in comparison to Awtar Singh.
The claim of title of the petitioners is through Awtar Singh, if Awtar Singh loses in the suit then any person claiming title from Awtar Singh, cannot put forth the objections which Awtar Singh could not.
It is also to be seen that an application under Order 21 Rule 90 was filed by the present petitioner, though the objections was in relation to the abstract prize, but however, when the objections were considered the Court had also, at the request of the parties, decided the question relating to title. The Court observed that the objections filed by the present petitioners were bad and were not entitled to be accepted. The findings giving in the order of rejection certainly would operate as res judicata and the petitioners would not be allowed to raise the question, which were earlier raised and were rejected. The petitioners have come as objectors as they were claiming the possession through Awtar Singh. After their objections were rejected then they cannot be allowed to raise further objections against the auction purchaser''s application for delivery of possession.
It is also to be seen that the sale was confirmed on 13.1.1999. The order came to be recalled and after rejection of petitioners'' objections, the order-dated 13.1.1999 was revived. The date when the order dated 13.1.1999 was revived, would be in fact, the date of confirmation of sale. The application for possession undisputedly is within one year of confirmation of sale. At this stage it also cannot be lost sight of that because of the objections raised by the petitioners, the respondent could not secure the possession, though he purchased the property in auction proceedings conducted by the Court. It would be wrong to say that after the order dated 13.1.1999 was recalled, the sale was required to be confirmed again. All concerns including the Court always thought that the sale was earlier confirmed on 13.1.1999, the order was recalled on objections filed by the petitioners and later on the order was revived. If the order-dated 13.1.1999 is revived and ultimately the petitioners'' objections came to be rejected on 23.10.2002 on withdrawal of their revision petition then cause of action for securing the possession would accrue on the date when the final order was passed. In the present matter the application for possession was filed on 16.9.2003, the said application undisputedly would be within one year/ within the period of limitation from the date of final order passed by the High Court.
It is also to be held that the objectors, at this stage cannot be allowed to challenge the auction purchaser''s application for delivery of possession because once their objections under Order 21 Rule 90 are rejected then no objections could be raised by them.
For the reasons aforesaid, we are unable to hold that the learned Court below was unjustified in rejecting the objections. The petition being sans merits is rejected with costs. The respondent No.6 Hari Narayan Vishwakarma would be entitled to the cost quantified at Rs.5,000/-.