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

Citation: [1996] SUPP. 2 S.C.R. 189 · Decided: 01-05-1996 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Dismissed

Judgment (excerpt)

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

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