VALIAMMAL versus R. PALANICHAMI NADAR AND ORS.

Citation: [1997] 1 S.C.R. 856 · Decided: 03-02-1997 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Dismissed

Judgment (excerpt)

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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 
D agitated the right title to the property and claimed that t<J the extent of her 
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 
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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. 
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From the Judgment and Order dated 7.5.96 of the Madras High 
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Court in C.R.P. No. 46 of 1996. 
B. Kanta Rao for the Petitioner. 
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The following Order of the Court was delivered : 
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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-
H tedly, the petitioner's mother had filed an application under Order XXI, 
. 856 
t-
R.P.A V ALIAMMAL v. R. P ALANICHAMI 
857 
Rule 64, CPC to set aside the execution of sale of two items of. properties. A 
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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 
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for a sum of Rs. 10,000 while two properties valuing Rs. 40,000 and another 
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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 
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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 
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questions arising between the parties to the suit in which the decree was E 
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passed, or their representatives, and relating to the execution, discharge or 
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 
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been dismissed, are parties to the suit. The opportunity to object to 
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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 
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right than the mother herself had. The petitioner having allowed the orders 
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to become final, it would not be open to

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