OUSEPH JOSEPH Vs. THRESIA

JUDGEMENT

(1.) Heard both sides.

(2.) Meanwhile, the decree holder applied for delivery of the property on dismissal of applications for setting aside the sale E. A. 91,92 and 93 of 1985. That application for delivery was made on 22.11.1988, in about 3 months of dismissal of the applications referred to earlier. The judgment debtor raised a contention that the application was barred by limitation, since it was not filed within one year of the confirmation of sale, in terms of Art.134 of the Limitation Act. Certain other objections were also sought to be raised including the objection that the decree holder having died, his legal representatives could seek delivery only after producing the succession certificate. Those objections were overruled by the executing Court and the decision of the executing Court was challenged before this Court in C.R.P. 4-96. This Court held by its order dated 2.1.1996 that in view of the fact that the sale would become enforceable only on 9.8.1988 with dismissal of the applications E. A. Nos. 91,92 and 93/85 and in view of the fact that the appeal E.F.A. 7/81 was dismissed only on 1.1.1991, the application for deli very was in time and could not be held to be barred by limitation. The other objections were also not accepted by this Court. Thus, this Court dismissed the revision. The judgment debtor seems to have filed another application E.A. 70/96 reiterated the objections which had already been overruled by the executing Court and affirmed by this Court. It appears to me that E.A. 70/1996 filed by the judgment debtor is an abuse of process of Court. A litigant is not expected to go on raising the same objections again and again, even when they have already been overruled by the Court. Entertainment of such repeated objections would go against the very public policy embodied in S.11 of the Code of Civil Procedure. This application was opposed by the decree holders. The executing Court by its order dated 12.4.1996 held that there is no merit in the contentions sought to be raised by the judgment debtor and that the claims were also barred by res judicata by the prior order in execution, affirmed in revision. This order is challenged in this revision by the judgment debtor.

(3.) On merits, I see no reason to accept the contentions raised on behalf of the judgment debtor. Since the sale became effective only by the dismissal of the appeal on 1.1.1991, there is no question of the application for delivery being barred by limitation. When an appeal is filed, against the order refusing to set aside the sale, the absoluteness of the sale remains suspended by a virtue of the pendency of the appeal and the decree holder is entitled to apply for delivery on the appeal being dismissed, on the basis that he has got one year's time under Art.134 of Limitation Act from the date of the appellate decree or order. This position is clear from the decision of the Supreme Court in Maganlal v. M/s. Jaiswal Industries Neemach ( AIR 1989 SC 2113 ). In addition, in the present case, there were applications for setting aside the sale at the instance of strangers which are entertained and adjudicated upon by the executing Court and those applications were dismissed only on 9.8.1988. The application for delivery was made on 22.11.198 8 presumably because the judgment debtor did not comply with the interim order of this Court in E.F. A. 7/81. The decree holder having applied within one year of 9.8.1998, when the challenge to the sale was rejected by the executing Court, the application for delivery could not be said to be barred by limitation. Moreover, the contentions sought to be raised are concluded by the earlier order of the executing Court in E.A.332/88 and the decision of this Court in C.R.P.4/96.