RADHEY SHYAM JAISWAL (DEAD) AND ORS.versusSMT. RAM DULARI DEVI AND ORS.

--             RADHEY SHYAM JAISWAL (DEAD) AND ORS.
                                v.
                  SMT. RAM DULAR! DEVI AND ORS.
                                                                                    A



                                    MAY 1, 1996

                     [M.M. PUNCHHI, 0. AND S.C. SEN J.]                             B

            Civil Procedure Code. 1908--Section 48(1)(a}--'Delay in filing applica-
     tion for execution of decree-Execution application filed without limitation
     period which was compromised-On failure to fulfill compromise conditions
     another execution application filed beyond limitation period-Not suggested C
     by party that second execution application was not afresh application-Held,
     the second execution application is barred by time-:Plea that /imitation should
     be computed from the date of failure-:P/ea not raised before the court
     below-Held, it cannot be permitted to raise the point in Supreme Cowt which
     was not urged in the Courts be/ow-Practice & Procedure.                         D
            The house in dispute, was attached, pursuant to a suit by 'H' against
     'R' and his sons. The suit was decreed on October 29, 1949 'H' (the decree
     holder) applied for execution by sale of the house. The sons objected that
     their share could not be sold. The objection was upheld.
                                                                                    E
          Decree holder went in appeal in High Court contending that sons
     should be held liable to pay father's debt. The appeal was allowed.

           Decree holder again started execution proceeding in which order for
     sale was made. But the sale did not take place because compromise was
     arrived at between parties that the sons would pay the whole decretal          F
     amount in monthly instalments and in default of payment of any of the
     instalments, decree holder was entitled to put the attached house for sale
     without issuing any further sale proclamation.·

           The judgment debtors failed to pay the instalments and therefore,        G
     decree holder filed another application for execution on November 16,
     1961.

           Pursuant to· application, the house was put to sale and was pur-
     chased by the father of the appellants (auction purchasers) who paid the
     entire purchase price. The appellants came into possession of the house H.
                                        189
    190                  SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.

A since the day of the purchase and had also made improvement on the
    property.

          After the sale had taken place, the widow and the daughters of 'R'
                                                                                  -
    who were not impleaded as party, tiled an objection that the sale was void
    ab-initio in their absence as they were also entitled to the property after
B   Indian Succession Act, 1955 had come into force. The Civil Judge allowed
    the application and set aside the sale.

          The decree holder preferred appeal before Additional Judge, which
    was allowed.

C         The widow and the daughter preferred second appeal before the High
    Court who upheld their objections. While going through the record, the
    court observed that execution application filed on November 16, 1961 was
    for the execution of the decree dated October 29, 1949 and thus, there was
    delay in filing execution application. The court held on the point of delay
D   that as per Section 48 of Civil Procedure Code, the application was barred
    by limitation and also recorded that the parties did not suggest that the
    application for execution was not a fresh application within the meaning
    of that provision.

          The auction purchasers (appellants herein) filed appeal to this
E Court contending that the execution proceedings initially taken were com-
    promised but the judgment debtor failed to fulfil the conditions of the
    compromise. Therefore, the limitation should be computed from the date
    of the failure. It was also contended that they should be compensated for
    the improvement brought about in the property. This Court had. earlier
F   directed the Civil and Session Judge, Mirzapur to evaluate the improve-
    ment, which he had evaluated at Rs. 86, 335.

          Dismissing the appeal, this Court

          HELD: 1.1. In view of the facts and circumstances of the case, the
G High Court was right in coming to the conclusion that the fresh applica-
    tion for execution was barred by time in view of the provisions of sub-sec-
    tion (1) (a) of Section 48 of the Civil Procedure Code as it stood at the
    material time. [194-G-H]

          1.2. The appellant cannot be permitted to raise the point which was
H not even urged in the courts below. It does not appear from the High Court
                                                              "
               R.S. JAISWAL v. RAM DULAR! DEVI [SEN, J.)                 191

Judgment that the point that since the judgment debtor failed to pay the        A
instalments which he had agreed to pay, the limitation should be computed
from the date of the failure was urged at all. On the contrary, the court
after referring to the provisions of Section 48 of" CPC has recorded that "it
was not suggested that it was not a fresh application for execution within
the meaning of that provision". That being the position, the appellant
                                                                                B
cannot be permitted to raise the point which was not even argued in the
courts ·below.

     The court directed that a sum of Rs. 86,335 must be paid by the
respondents to the appellants as compensation for improvement to the
property made by the appellant. (195-A-C; G]                                    C

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9983 of
1983.

     From the Judgment and Order dated 8.2.82 of the Allahabad High
Court in E.S.A. No. 4267 of 1964.                                               D
        Ms. Ka mini J aiswal for the Appellants.

        R.P. Singh and Shiv Sagar Tiwari for the Respondents.

        The Judgment of the Court was delivered by
                                                                                E
       SEN, J. Late Hanuman Das filed a suit for recovery of money against
Raghunandan Ram and his sons - Mewalal, Misri Lal and Sewa Lal - and
his brother Babunandan Ram. In the suit, an order of attachment before
judgment was passed in respect of the house now in dispute. The suit was
decreed against Raghunandan Ram and his three sons but was dismissed F
against Babunandan Ram. The decree-holder applied for execution of the
decree (execution case No. 3 of 1951) by sale of one half share in the
disputed house. The sons of Raghunandan Ram filed an objection under
Section 47 of Code of Civil Procedure that it is only the share of Raghunan-
dan Ram in the joint family property which could be sold. The objection G
was upheld. Hanuman Das went up in appeal to the High Court and
 contended that the sons were liable for the payment of the father's debt.
 The entire one half share of the father and of the sons in the ancestral
 property was liable to be sold in the execution of the decree. The appeal
 was allowed and it was held that the decree-holder, i.e., Hanuamn Das was
 entitled to proceed against one half share of _the house in dispute.        H
    192                   SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.

A          After the decision of the appellate court, execution proceeding com-
    menced once again but Raghunandan Ram died on 9.1.1960. The decree-
    holder moved an application for striking of the name of Raghunandan Ram
    of the record and continuing the execution proceedings. It was contended
    that the heirs of Raghunandan Ram - Mewa Lal, Misri Lal and Sewa Lal
    - were already parties in the proceedings and that it was not necessary to
B
    bring them on record as legal representatives. The prayer was allowed by
    the Civil Judge by passing an order a' prayed for after giving a notice of
    hearing to the sons of Raghunandan Ram.

           In the execution case, an order for sale of the half share of the
C   disputed house was made, a proclamation of sale was made and 20.4.1961
    was fixed as the date of sale. However, the sale did not take place because
    a compromise was arrived at between the sons of Raghunandan Ram and
    the decree-holder. It was agreed that the sons would pay the whole of the
    decretal amount in monthly instalments of Rs. 500 each. A sum of Rs. 500
D   was paid to the decree-holder who was in the court. The sons of Raghunan-
    dan Ram were to pay the remainder of the decretal dues in three instal-
    ments on 31.5.1961, 30.6.1961 and 31.8.1961. In default of payment of any
                                                                                     >
    of these instalments, Hanuman Das was entitled to put the attached house
    to sale without issuing any further fresh sale proclamation. On this com-
    promise being reached, the Civil Judge passed an order on 31.4.1961
E   striking off the execution case for the time being

          The judgment-debtors, however, did not pay the instalments.
    Another application for execution was made on 16.11.1961 (execution case
    No. 22/1961). In that case, it was prayed that the record of the original case
    No. 3/1951 be sent for and execution proceeded with in accordance with
F   law in view of the default committed by the judgment-debtors. Pursuant to
    the said prayer, one half share in the disputed house_ was put to sale once
    again and was ultimately sold to one Bhagga Ram on 8.9.1962. The entire
    purchase price was paid by Bhagga Ram on 17.9.1962.

G         The case of the appellants who arc the sons of the late Bhagga Ram
    is that they are living in the house since Bhagga Ram purchased the
    property in the auction sale. It is alleged that the property was in a very
    bad state and Bhagga Ram had spent large sums of money in the renova-
    tion of the house.

H         The widow and daughters of Ragunandan Ram filed an objection on
                  R.S.JAISWAL v. RAMDULARIDEVI [SEN,J.]                    193



-   11.10.1962 in the court alleging that after the passing of the Indian Succes- A
    sion Act, 1956, the widow and daughters became entitled to the property
    along with three sons but were not brought on record after the death of
    Raghunandan Ram and that the sale had taken place behind their back.
    The omission to implead them went to the root of the jurisdiction of the
    execution court to sell the property. The sale, therefore, was void ab initio
                                                                                  B
    and should be_ set aside. The objection was upheld by the Civil Judge and
    by an order dated 8.10.1963 the sale effected on 8.9.1962 pursuant to the
    order of the execution court was set aside. The auction-purchaser did not
    prefer any appeal against this order.

          However, the decree-holder preferred an appeal to the court of C
    Second Additional Judge, Allahabad who by order dated 3.10.1964 allowed
    the appeal and dismissed the objections filed by the objectors with costs.
    The court held that the widow and the daughters had never put in ap-
    pearance in the execution case for thirteen years and filed the objections
    only after the sale had taken place with a view to further delay the D
    execution proceedings. The objections have been filed belatedly to delay
    the execution prxeedings and prevent the. decree-holder from getting the
    benefit of the decree obtained by him.

          The widow and the daughters of Raghunandan Ram being aggrieved
    by the decision of the Additional Judge, preferred an execution second       E
    appeal in the High Court of Allahabad. The High Court allowed the appeal
    and upheld the objections raised by the widow and the daughters of the
    judgment-debtor and cancelled the sale of property.

          The High Court pointed out that after reserving judgment, it went F
    through the record and discovered that the execution application giving
    rise to the present proceedings was filed on 16.11.1961 while the order
    under execution was passed on 29.10.1949. This went to show that there
    was a delay of eighteen days beyond the limit of twelve years fixed by
    Section 48 of the Code of Civil Procedure as it stood at that time. He,
    therefore, directed the case to be fixed for further hearing in order to give G
    the decree-holder· and the auction-purchaser an opportunity to meet the
    point. The case was, thereafter, taken up for further hearing on the
    adjourned date. But the decree-holder did not appear. On behalf of the
    auction-purchaser, a prayer was made for examining the file of the execu-
    tion case No. 3/1951 and No. 22/1961. It was contended that the sale had     H
    194                  SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A   been confirmed during the pendency of the appeal and even a certificate
    of sale had been issued.

          The court held that it was unnecessary to call for any of the files
    inasmuch as the entire file of the execution case in which the sale took
    place and also the application for execution was available in court. The
B   subsequent papers relating to confirmation of the sale during the pendency
    of the appeal were not necessary for ·deciding the questions raised in the
    appeal.

          It was held that Section 48 of the Civil Procedure Code, as it stood
C at the material time, was a bar to filing any execution application beyond
    the period of 12 years from the date of passing of the decree. The execution
    application, which was filed on 16th November, 1961, was for execution of
    a decree passed on 29th October, 1949. Therefore, it was clearly beyond
    the period of 12 years and was barred by limitation. It was recorded in the
    order "it was not suggested that it was not a fresh application for execution
D   within the meaning of that provision". The Court, therefore, passed the
    following order :

             "In the result, the appeal succeeds and is allowed. The appellant's
             objection under section 47 is allowed. The execution application
             filed on 16th November, 1961; Execution Case No. 22 of 1961 in
E
             the court of the Civil Judge, Mirzapur, is dismissed. The sale of
             the property and the confirmation thereof and the sale certificate
             issued in pursuance thereto and other action taken, stand annulled.
             The auction purchaser shall be entitled to refund of the amount
             paid by him. However, in the circumstances, the parties shall bear
F            their own costs throughout. 11

           The decree-holder did not appear at the final hearing. The auetion-
     purchaser also did not seriously dispute that the application for execution
     pursuant to which the judgment-debtor's property was sold was beyond the
G    period of twelve years from the date of the decree. In that view of the
     matter the Court was right in coming to the conclusion that the fresh
     application for execution was barred by time in view of the provisions of
     sub-section (l)(a) of Section 48 of the Civil Procedure Code as it stood at
     the material time.

H          It has been argued on behalf of the appellants that the execution
              R.S. JAJSWAL v. RAM DULAR! DEVI [SEN, J.]                195

proceedings initialJy taken were compromised and the judgment-debtors A
had agreed to pay off the decretal dues by instalments. There was a failure
on the part of the judgment-debtors to pay such instalments and limitation
should be computed from the date of the failure. It does not appear from
the judgment that this point was urged at all. On the contrary, the Court
after referring to the provisions of Section 48 of Civil Procedure Code, has B
recorded that "it was not suggested that it was not a fresh application for
execution within the meaning of that provision". That being the position,
the appellant cannot now be permitted to raise the point which was not
even argued in the court below. The court also did not go into the question
of the effect of the failure on the part of the decree-holder to bring the
widow and daughters of the judgment-debtor on record.                        C

       A point was taken by the appellant that considerable improvement
to the property was brought about by him. Therefore, he must be suitably
compensated for the improvements brought about by him before the
property is allowed to be taken back by the judgment-debtors. As against D
this, it has to be borne in mind that the case of the appellant-auction
purchaser is that immediately after the auction sale, he went into posses-
sion of the property and brought about improvements. He has been in
possession of the property since then and has enjoyed the use and benefit
of this property for a considerable period of time. It appears that on
30.11.1982 an order was passed by the then Chief Justice and V.D. Tu!- E
zapurkar, J. Directing the Civil and Sessions Judge, Mirzapur, to make a
valuation of the improvements made by the auction-purchaser to the
property after the date of the purchase on the basis of the current market
price. A further direction was given for maintenance of status quo. The
District Judge, Mirzapur, sent a report to this Court in which he has stated
                                                                             F
that improvements made by the auction-purchaser were valued at Rs.
86,335.

       We, therefore, affirm the order dated 8.2.1982 passed by the Al-
lahabad High Court in Execution Second Appeal No. 4267 of 1964 but
direct that a further sum of Rs. 86,335 must be paid by the respondents to   G
the appellants. Save as aforesaid, the appeal is dismissed. No order as to
costs.

K.K.T.                                                 Appeal dismissed.