GANGABAI GOPALDAS MOHATA versus FULCHAND AND OTHERS

Citation: [1996] SUPP. 10 S.C.R. 457 · Decided: 19-12-1996 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

GANGABAI GOPALDAS MOHATA 
A 
v. 
FULCHAND AND OTHERS 
DECEMBER 19, 1996 
B 
[MADAN MOHAN PUNCID AND K.T. THOMAS, JJ.] 
Civil Procedure Code, 190&-Sections 47(3) and 50, order 21, Rules 16, 
84 and 85-Person approaching the executing Court claiming to be the repre-
sentative of the decree-holder's interest in the decree, decree-holder disputes C 
it-The executing Court has to resolve the dispute for proceeding with the 
execution of the decre-Traneferee pendentelite is representative of his trans-
feror within the meaning of sub-section (3) of Section 47-'Representative' 
under Section 47has wider meaning than 'legal Representative' used in Section 
50. 
Maharashtra Munidpalities (Sale of Distrained or Attached Movable 
and Immovable Property) Rules, 1967-Rules 8(2), (3) and 13--Requirement 
of making payment within the fixed period is mandatory-Failure to comply 
with, renders the sale void-These mies follow the same prindple as provided 
by Order 21, Rules 84, 85 CPC. 
The Appellant filed a civil suit for recovery of possession of the Nazul 
Land of Murtiza Municipality from respondents No. 2-5, the lessees. The 
suit was compromised pursuant to which a compromise decree was passed. 
D 
E 
As per the terms of comprolllise decree respondents were to vacate the 
premises but they did not and the appellant took out execution proceedings F 
against them. In the meantime the Municipality attached the suit property 
for arrears of Municipal Tax claimed against the appellant and the 
property was put to public auction. The appellant filed a suit for injunction 
against the Municipal Committee from proceeding with the sale as no 
Municipal tax was due from her. The application for interim injunction of G 
the appellant under Order 39 Rule 1 CPC was dismissed on 24.2.1984 with 
the observation that the l\f unicipal Committee may conduct the sale but 
. it should not be confirmed before fifteen days after the sale and before the 
' expiry of this period if the appellant furnishes the outstanding amount, 
the sale be not confirmed for one month more. If within that period of one 
month, the appellant deposits the entire amount, the sale will be cancelled H 
457 
/ 
458 
SUPREME COURTREPORTS[l996J SUPP.10 S.C.R. 
A and if the said amount is not deposited the sale will be confirmed. 
The auction sale took place on 27.2.1984. Respondent No. 1 was the 
highest bidder and he deposited one fourth of the sale amount on the same 
day. However, on 12.3.84, the appellant deposited Rs. 50,000 in the Court, 
which was more than the claim of tax arrears demanded by the Municipal 
B Committee. The appellant filed application for cancellation of the sale but 
the same was dismissed with the observation that she should file a fresh 
suit for this purpose. Fresh suit filed by the appellant was dismissed for 
default on 7.11.1990. The first respondent deposited the balance bid 
amount with the Municipal Committee on 9.11.1990 and got a sale certifi-
C cate issued in his favour from the Municipal Committee. On the basis of 
the sale certificate respondent No. 1 filed an application Under Order 21 
Rule 16 before the Execution Court praying that he be substituted as 
transferee of the decree- holder. The Execution Court rejected the applica-
tion of the respondent No. 1 but the High Court took a contrary view that 
the dispute between respondent No. 1 and the decree-holder is not of the 
D kin which the Court could resolve under Section 47 of the CPC. Hence this 
appeal. 
Allowing the appeal, this Court 
E 
HELD : 1. The High Court erred in holding that the dispute between 
the first respondent and the decree-holder is not the kind of dispute which 
the execution court should resolve under Section 47 of the Code of Civil 
Procedure. On the contrary, if a person approaches the executing court 
claiming that he is the representative or the decree-holder's interest in the 
decree and the decree-holder disputes it, the executing court has to resolve 
F the dispute for proceeding with the execution or the decree. [463-C-D] 
The view taken by the High Court that the executing court exercising 
power under Order 21, Rule 16 of the Code has only a limited jurisdiction 
as the Court can not examine the legality of documents on title, is er-
roneous and not in consonance with the wide language of Section 47 of the 
G Code. Section 47 of the Code of Civil Procedure is couched in a very wide 
· language. The very object is to avert another suit concerning th

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