Execution proceedings

Acceptance of judgment-debtor's appeal by Supreme Court setting aside such auction and allowing auction purchaser to withdraw such amount

Application by auction purchaser for refund of such amount with compensatory interest

Validity

Such amount deposited by judgment debtor was lying in current account of Supreme Court bearing no interest/mark-up thereon

Plea of compound interest or future interest raised by auction purchaser was not tenable as same was beyond stipulation contained in such order of the Supreme Court

Application was disposed of in circumstances.

Suit for recovery of past maintenance by wife and husband's prayer in written statement for restoration of conjugal rights decreed by Family Court by one and the same judgment

Applications by both parties for execution of their respective part of decree

Order of Family Court attaching decreed allowance till satisfaction of decree of conjugal rights by wife

Recalling of such attachment order by Family Court and directing husband to pay decreed allowance as same could not be attached to compel wife to obey decree of conjugal rights passed in his favour

Dismissal of husband's appeal by Appellate Court filed against recall order

Validity

Court in interest of justice could recall or modify a patently illegal and unlawful order

According to O.XXI, R.33, C.P.C., Executing Court while executing decree for conjugal rights could not attach decree passed for such allowance in favour of wife

Husband would be legally bound to maintain his wife, if her refusal to live with him was justified by reasonable cause

Wife in present case, had been found to be entitled to past maintenance as husband had contracted second marriage, thus, she (first wife) was legally justified to live apart and he was bound to pay her maintenance

Family Court had no jurisdiction to pass such attachment order and had power to vary, modify and rescind same

High Court dismissed constitutional petition in circumstances.

Nazir in such a case would act as "AMEEN" of public property.

Judgment-debtor's plea supported by affidavit to the effect that on crucial date, junior of his counsel appeared before court and requested for an adjournment, but his presence was not marked and objection petition was decided in absence of appellant and his counsel

Validity

Decree-holder had not filed counter-affidavit to rebut such affidavit of judgment-debtor

High Court accepted such affidavit of judgment-debtor, meaning thereby that he was represented by another counsel on crucial date, thus, Banking Court could not proceed against him

Petition contained objection against auction conducted by Auctioneer, decision whereof was necessary

Judgment-debtor on technical ground could not be deprived of an opportunity to represent his case before Banking Court

High Court set aside impugned order and directed Banking Court to decide objection petition within specified time.

Intervenor had filed objection application with prayer therein to investigate his claim that he was owner of plot in question

Record had established that title documents of the subject property were in favour of decree-holder

Nazir of the court in his report had submitted that subject plot had been demarcated by the officials having layout plan of 1972

Counsel for intervenor had not filed any objection to the Nazir's report

Claim of the intervenor on the subject plot was baseless and his application was misconceived and was dismissed

Nazir of the court was directed to take physical possession of the subject plot of the execution proceedings, which had already been demarcated; and hand over physical possession of the same to the decree-holder.

Objector's plea that attached properly was owned by her and could not be sold in execution of decree passed against judgment­-debtor

Decree-holder's plea that objector being a house-lady had no source of income; and that judgment-debtor used to purchase properties benami in names of others to avoid his liabilities

Validity

Registered document produced by objector showed that attached property was in her name and she purchased same long before filing of suit against judgment­-debtor

At stage of execution, such question could not be gone into as to who had provided funds to objector to purchase such property

Objection was allowed and such property was released from attachment in circumstances.

High Court, in execution application directed that alternate land would be provided to the decree-holder and in case it was not allotted within the stipulated time, decree-holder should be allowed to raise construction on the plot according to approved plan and judgment-debtor would not create any hindrances to the proposed construction without due process of law

Respondent/decree-holder was the owner of the, subject property and he was alternatively entitled to raise construction

Foreign Government interest being involved in the case, two months' time was allowed to complete the entire exercise of land acquisition

If entire exercise was not concluded and the amount was not deposited or paid to the decree-holder within two months, decree-holder would be entitled to resume construction of the plot.

Appellants, who claimed that property in the name of the judgment-debtor had already been decreed in their favour, filed objection petition and prayed for cancellation of auction as judgment-debtor was left with no right or interest in the property to be auctioned

Appellants had further contended that Executing Court was not justified to auction the property owned by the appellants

During pendency of suit filed by the appellants challenging revenue entries, one of the respondents transferred said property to the other respondent and said respondent again transferred the property to judgment­-debtor

Suit filed by the appellants finally was decreed in their favour

Original vendor was left with no right in suit property, subsequent vendees including the judgment-debtor had stepped into the shoes of said original vendor who got no right in respect of the property

Transfer which was made during pendency of suit filed by the appellants without leave and permission, was hit by principle of lis pendens as envisaged by S.52 of the Transfer of Property Act, 1882

Executing Court was not justified to conduct auction proceedings in respect of property decreed in favour of the appellants by the civil Court

Impugned order was set aside, objection petition of the appellants was accepted and auction proceedings in respect of property in dispute, were cancelled.

Application for setting aside ex parte decree and challenging judgment, decree on ground of fraud and misrepresentation filed by the defendant had been dismissed by the Banking Court

Validity

Since the defendant, admittedly was not served on his address, given in the memo of plaint, but on another address, notices were sent, where the defendant was not residing; and the defendant came to know about the proceedings when plaintiff Bank filed application under O.VII, R.11, C.P.C., prima facie application under S.12(2), C.P.C. was maintainable

Controversy, whether any fraud and misrepresentation had been made in the matter, could be resolved after recording the evidence

Impugned order was set aside

Banking Court was directed to frame the issues and after recording the evidence and hearing the parties, decide the same afresh.

Mortgage of same property by borrower in favour of Bank "N" through prior registered deed and then in favour of another Bank by deposit of title deed

Sale of property by Banking Court to satisfy decree of said another Bank, but failure of Official Assignee to deliver possession of property to auction purchaser for being attached by another court

Application by Bank "N" for recalling such order of sale for having been obtained by concealment of its prior registered charge on property already attached by another court in execution of decree

Acceptance of such application by Banking Court with direction to said another Bank to return sale proceeds to Bank `N'

Validity

Registered mortgage in favour of Bank `N' was prior in time, while simple mortgage by deposit of title deed in favour of said other Bank was later in time and unregistered

Other Bank's case was not that due to fraud, misrepresentation or gross negligence of Bank `N' the other E WA had been induced to advance money to judgment debtor on security of already mortgaged property

Registered mortgage would be a notice to entire world of factum of its registration

Other Bank should have made efforts and exercised due care and diligence before advancing amount to judgment debtor on strength of property over which Bank 'N' had already a registered mortgage

Registered mortgage, even though later in time, would take priority over an earlier unregistered mortgage

Sale proceeds as per O.XXXIV, R.13, C.P.C., would be applied towards satisfaction of a prior mortgagee's debt before subsequent mortgage could have any interest therein

Other Bank,' despite having full knowledge about property being in custody of another Court on basis of attachment had approached Banking Court for its sale and started inviting purchase offers on its own

Only Banking Court could determine question of priority of interest as between both the Banks

Such order of sale was not only illegal, but also without jurisdiction

Supreme Court upheld impugned judgment in circumstances.

Mortgage of same property by borrower in favour of Bank 'N' through prior registered deed and then in favour of another Bank by deposit of title deed

Sale of property by Banking Court to satisfy decree of said another Bank, but failure of Official Assignee to deliver possession of property to auction-purchaser for being attached by another court

Application by Bank 'N' for recalling such order of sale for having been obtained by concealment of its prior registered charge on property already attached by another Court in execution of decree

Acceptance of such application by Banking Court with direction to said another Bank to return sale proceeds to Bank 'N'

Validity

Registered mortgage in favour of Bank 'N' was prior in time, while simple mortgage by deposit of title deed in favour of said other Bank was later in time and unregistered

Other Bank's case was not that due to fraud, misrepresentation or gross negligence of Bank 'N' the other Bank had been induced to advance money to judgment-debtor on security of already mortgaged property

Registered mortgage would be a notice to entire world of factum of its registration

Other Bank should have made efforts and exercise due care and diligence before advancing amount to judgment-debtor on strength of property over which Bank 'N' had already a registered mortgage

Registered mortgage, even though later in time, would take priority over an earlier unregistered mortgage

Sale proceeds as per O.XXXIV, R.13, C.P.C., would be applied towards satisfaction of a prior mortgagee's debt before a subsequent mortgage could have any interest therein

Other Bank, despite having full knowledge about property being in custody of another Court on basis of attachment, had approached Banking Court for its sale and started inviting purchase offers on its own

Only Banking Court could determine question of priority of interest as between both the Banks and NBP

Such order of sale was not only illegal, but also without jurisdiction

Supreme Court upheld impugned judgment in circumstances.

Petitioner's plea was that due to typographical mistake, word "sale" instead of word "lease" had been written in sale certificate and auction-purchaser was transferred only lease hold rights, but not proprietary rights, thus, auctioned property was liable to be reverted to its original owner after expiry of lease period

Validity

Earlier application for annulment of confirmation of auction accepted by Executing Court was rejected by High Court in appeal, whereagainst petition for leave to appeal and review petition filed before Supreme Court were dismissed

High Court in its order had observed that no objection regarding ownership of property had been taken earlier during trial of suit or before Executing Court

Property auctioned belonged to petitioner, thus, there was no mistake in sale certificate

Such matter had attained finality and could not be reopened after 21/22 years

Execution proceedings were pending before Banking Court at place "F"

High Court had become functus officio and had no jurisdiction to entertain such petition, which was dismissed in circumstances.

Suit filed by the Bank against defendant borrower, was decreed by the Bunking Court and mortgaged properly was ordered to be sold

While mortgaged property was in the process of being sold in execution proceedings, plaintiff-Bank offered the defendant to get the properly redeemed, but defendant failed to do so

Sale of mortgaged properly in favour of highest bidder was confirmed

Application filed by the defendant for recall of order of sale having been dismissed by the Executing Court, defendant aggrieved with said order, had filed appeal, contending that he was ready and willing to make payment to the plaintiff-Bank, court ought not to have sold the properly

Validity

held, even after the bids were invited, ample opportunity was given to the defendant to gel the mortgaged property redeemed, but the defendant failed to make payment

No other course was left with the Executing Court, but to confirm the bid of the highest bidder; thereafter it was too late for the defendant to seek yet another opportunity to get the sale set aside Court sale should only be set aside when equitable grounds for nullifying the same existed in favour of the person who owned or held any interest in the properly sold

Said equitable grounds were provided by law under the provisions of Rr.89 & 90 of O.XXI, C.P.C.

Defendant having failed to make payment though ample opportunities were given to him at various stages of the proceedings, no legal infirmity existed in the impugned judgment.

Case of intervener was that property sold through auction in execution proceedings was already mortgaged with it since 1983 under a registered mortgage-deed

Effect

As valuable right had been created in favour of auction purchaser, who had .become bona fide owner for value, sale in his favour could not be set aside, however, intervener being prior mortgagee was entitled to receive the amount of sale consideration pursuant to such sale after deducting expenses incurred in the process of sale

Petitioner was directed to return the amount which it had received from the Official Assignee within specified period, to the intervener.

Present case was an office reference submitted by Assistant Registrar Soliciting Answers to Questions as to whether decree could be prepared in terms of the judgment to the extent of the maximum liability of the defendant/Insurance Company as disclosed in the judgment; since the amounts pertaining to the liability of the defendant under the policy had already been deposited or paid

Held, that the judgment passed by the High Court, could be treated as maximum liability to the extent of the amount so deposited and decree was ordered to be prepared accordingly.

Notice of auction advertised offering property for absolute sale-Non-­mentioning in such notice that property offered for sale was in fact a leased land given for 30 years by government for poultry farming

Deposit of earnest money by auction-purchaser without knowing status of property being saleable or transferable

Application by auction-purchaser for refund of earnest money

Rejection of application and forfeiture of earnest money by Banking Court

Validity

Advertisement published by Banking Court was itself defective-Auction­-purchaser had participated in auction and deposited earnest money under a wrong impression

High Court directed Banking Court to refund earnest money deposited by auction-purchaser.

Property tax and utility bills outstanding against property prior to its auction-Auction, purchaser's liability to pay such taxes and bills

Scope

Purchaser would not be bound to pay such taxes and bills, unless there was mention in advertisement of sale of property that same was being sold with all liabilities

Term "as is where is" would refer only to physical attributes of property sold and would not relate to its liabilities, dues and taxes

Liability of utility bills would be that of consumer

Consumer was judgment-debtor and not property

Merely providing utility services at property would not create any charge over property unless so declared by law

In absence of contract to contrary, seller/judgment-debtor would be liable to pay all public charges in respect of property sold

Between purchaser and seller/judgment-debtor, there was no contract that purchaser would be liable to pay dues and taxes over property sold

Property tax would have priority over claim of seller/judgment-debtor, which would be paid from sale proceeds of property

Purchaser would not be liable to pay any dues over property upto date on which its sale in his favour was made absolute by Court

High Court issued sale certificate to purchaser free from all liabilities in, circumstances.

Objection petition was filed under S.47, C.P.C. which empowered the Executing Court to adjudicate upon the matters relating to execution, discharge or satisfaction of the decree and the Court could not go behind the same

Where the decretal amount had been challenged through the objection petition, the same under the law was not maintainable

Executing Court, in the present case had rightly dismissed the objection petition for not furnishing security in accordance with O.XXI, R.23-A, C.P.C.

High Court declined to interfere with the order passed by the Executing Court

Appeal was dismissed in circumstances.

Executing Court cannot go beyond judgments and decrees of competent Courts passed by them according to law.

Leave to appeal granted to consider several points raised by appellants including that since all objections raised by tenant in first round of litigation were overruled it was not open to him to raise similar pleas in execution proceedings.

High Court while admitting writ petition, allowing continuance of execution proceedings and permitting withdrawal of decretal amount without furnishing security

Order impugned on ground that its recovery would become problematical in case writ petition was accepted

Order was modified by Supreme Court to effect that decretal amount shall not be withdrawn without furnishing security.

Application of-Execution proceedings in respect of order of eviction having been filed before Civil Court and such order having effect of a decree passed under C.P.C., provisions of O. XXI, C.P.C., held, applicable.

Art. 185(3)-Execution proceedings-Limitation-Pleas raised meant to assist petitioners to escape from their obligations under a decree which they solemnly undertook to satisfy-Held, such pleas cannot induce Court to exercise its discretionary jurisdiction of granting leave to appeal-Petition dismissed.

O. XXI, r. 103 [as amended by Law Reforms Ordinance (XII of 1972)]-Execution proceedings-Suit to establish right-Rule 103 of O. XXI, as amended by Law Reforms Ordinance, 1972, having come into force on date in question, appellants, held, did not possess an alternative remedy by way of suit.-[Interpretation of statutes].

Art. 199-Writ jurisdiction-Execution proceedings-Order passed by executing Court -Could not tie made subject-matter of challenge in exercise of writ jurisdiction-Executing Court having jurisdiction to dispose of objections, held, could Dass a legal as well as illegal order and such order could not be questioned in exercise of constitutional jurisdiction.-[Execution proceedings].

Execution proceedings, stay of-Interim order-Not to be interfered with unless wholly illegal or arbitrary or whimsical-Substance of order, not its words alone, have to be looked into.

(b) Execution proceedings-Executing Court cannot go behind decree or award simply on allegation of original claim being time barred.

Execution proceedings-Stay-Money suit- Courts usually do not stay execution of decree in, till disposal of appeal because no irreparable loss caused thereby.

Previous execution application dismissed for default-No adjudication as to limitation made by execution Court-Question of limitation can be raised on subsequent execution application being filed

Res judicata-Principle applicable only if there was express or implied determination of question in previous proceeding.

Execution proceedings -Question raised in an execution, proceeding and decided-Cannot be re-agitated in subsequent proceeding in execution.

Execution proceedings Could not be consigned to record room merely on receiving intimation from Debt Conciliation Board that debt had been discharged, to prejudice of parties without notice to them.