Holding

A party cannot raise a fresh objection under Section 47 of the CPC to the execution of a decree once the title has been negatived and the order has become final; such objections may be made only once.

Summary

The petitioner sought to set aside the execution of a sale of two properties that had been ordered by the High Court after his mother’s earlier application under Order XXI, Rule 64 of the CPC was dismissed and became final. After his mother’s death, the petitioner filed an application under Section 47 of the CPC alleging excessive execution, claiming the properties were sold for a price far below their value. The High Court rejected this ground, holding that the title had already been negatived and became final, and that objections to execution could be raised only once. The Supreme Court affirmed that view, stating that Section 47 and its Explanation allow only a single opportunity to object to the executability of a decree, and repeated applications are unwarranted. Consequently, the petition was dismissed as there was no legal basis to reopen the execution, and no interference under Article 136 was warranted.

Issues considered

Whether a party can raise a fresh objection under Section 47 of the CPC to the execution of a decree after a prior application to set aside the execution has been dismissed and become final.
Whether the objection of excessive execution can be entertained after the proclamation of sale when it was not raised earlier.

Legislation cited

Code of Civil Procedure, 1908s. Explanation 1, s. Order XXI Rule 64, s. Order XXI Rule 90(3), s. Order XXI Rule 93, s. Section 47
Constitution of Indias. Article 136

Subjects

CPCSection 47execution of decreeexcessive executionfinal decreespecial leave petitionArticle 136property saleobjection to execution

Judgment

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A R.P.A. VALIAMMAL
v. • ..,
R. PALANICHAMI NADAR AND ORS.

FEBRUARY 3, 1997

B [K. RAMASWAMY AND G.T. NANAVATI, JJ.]

Code of Civil Procedure, 1908 : Section 47-Explanation 1 Order 21 ,;..
Rules 64, 90(3) and 93--Decree-Execution of-Objections as to-Application
for setting aside-Execution of sale filed by petitioner's mother-Dismissal of
c application and the same became final-After his mother's death petitioner
filed an application under Section 47--Ground of excessive execution raised
in High Court-High Court, held that since the title of petitioner had been
negatived on earlier occasion and had become final it cannot be gone intq .
afresh-Appeal befqre Supreme C<Jurt-Held petitfoner's m<Jther had already
agitated the right title to the property and claimed that t<J the extent of her
D _.,
right, the executfon was n<Jt valid in law-That right having been negatived
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and become final, the petitioner cannot have any higher right than the mother
herself had-The petitioner having allowed the orders to become final, it was
not open to him to raise the contentions thereafter-Since the title has already .
been lost and has become final, the petitioner cannot agitate the executability
E of the decree in the absence of any legal title to question the correctness of
the execution-Held no interference under Article 136 was called for.

CIVIL APPELLATE JURISDICTION : Special Leave Petition (C)
No, 3336 of 1997.

F From the Judgment and Order dated 7.5.96 of the Madras High "'
Court in C.R.P. No. 46 of 1996.

B. Kanta Rao for the Petitioner.

The following Order of the Court was delivered :
G
,.-

H
Delay condoned.

This special leave petition has been filed against the judgment of the
High Court of Madras, made on May 7, 1996 in CRP No. 46/96. Admit-
tedly, the petitioner's mother had filed an application under Order XXI,
--
. 856
t-
R.P.A VALIAMMAL v. R. PALANICHAMI 857

Rule 64, CPC to set aside the execution of sale of two items of. properties. A
-. The petition ultimately came to be dismissed and became final. After her
demise, the petitioner filed application under Section 47 of the CPC
contending that the property could not be brought to sale for several
reasons. In the High Court, one of the grounds raised was that the
properties were sold for a grossly inadequate price and sale of both the B
properties was excessive execution. It was stated that the decree was only
-1 for a sum of Rs. 10,000 while two properties valuing Rs. 40,000 and another
<
Rs. 1,00,000 have been brought to sale and, therefore, they are in excess of
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the decree in execution. The High Court has negatived the contention on
the ground that since the title of the petitioner had been negatived on c
earlier occasion and had become final, it could not be gone into for the
third occasion. Even though the petitioner had one-sixth share, as con-
tended, in view of the prohibition contained under Order 21, Rule 93, CPC
and since. objection in respect of the excessive execution was not raised
before the proclamation was settled the objection cannot be countenanced.
D
Shri B. Kanta Rao, learned counsel for the petitioner contends that in view
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... of Section 47 of the CPC, the petitioner is entitled to raise the objection
at any stage and, therefore, the view taken by the High Court is not correct
in law. We find no force in the contention. Section 47 postulates that all
·• questions arising between the parties to the suit in which the decree was
J.
passed, or their representatives, and relating to the execution, discharge or E
satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit. Explanation 1 added thereto by Amend-
ment Act, 1976 postulates that for. the purposes of this section, a plaintiff
whose suit has been dismissed and a defendant against whom a suit has
been dismissed, are parties to the suit. The opportunity to object to F
" executability of the decree could be taken only once and repeated applica-
tions appear to be unwarranted. It is not in dispute that petitioner's mother
had already agitated the right title to the property and claimed that to the
extent of her right, the execution was not valid in law. That right having
been negatived and become final, the petitioner cannot have any higher G
right than the mother herself had. The petitioner having allowed the orders
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I to become final, it would not be open to the petitioner to raise the
contentions thereafter. Even otherwise also, as held by the High Court, the
--... objection as to excess execution has not been raised. Though Order 21,
Rule 90(3), CPC may not be strictly construed so as to put a fetter on the H
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858 SUPREME COURT REPORTS -\
[1997] 1 S.C.R.
A Court, due to non-raising of the objection before proclamation of sale and
the objection could be raised even at a_ later stage, but since the title has
already been lost and has become final, the petitioner cannot agitate the
executability of the decree in the absence of any legal title to question the
correctness of the execution. Under these circumstances, we do not think
B . that we would be justified to exercise the power under Article 136 of the
Constitution.

The special leave petition is accordingly dismissed.

T.N.A. Petition dismissed.

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