HARIKRISHNAN A Vs. REGISTRAR

JUDGEMENT

(1.) THE petitioner has filed the above writ petition for issue of a writ of certiorari to call for the records relating to the order dated February 15, 1989, in Application No. 686 of 1989 in Execution Petition No. 73 of 1981 on the file of the High Court, Madras, in C.S. No. 1291 of 1981 on the file of the High Court of Bombay, pending before the official referee in so far as it relates to the sale of immovable property by auction as it contravances the provisions of section 269UC and sub-section (2) of section 269UL of Chapter XX-C of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), and to quash the same.

(2.) THE second respondent instituted a suit, C.S. No. 1291 of 1981 on the file of the High Court of Bombay against one A. B. Ananthakrishnan, the father of the petitioner herein, for a sum of Rs. 7.40 lakhs and obtained a decree on September 7,1981. For the purpose of execution of the said decree, the decree was transferred to the High Court at Madras and numbered as Execution Petition No. 73 of 1981 on the file of the High Court at Madras in C.S. No. 1291 of 1981 (High Court at Bombay). During the pendency of the said execution petition, the said Ananthakrishnan died on January 22,1982, and, consequently, all his legal representatives were brought on record. THE said legal representatives appeared to have filed claim applications raising legal contentions and having been unsuccessful, the matter is stated to be pending on appeal, viz., O.S.A. Nos. 166 and 167 of 1987 on the file of this court. As there was no impediment for the decree-holder from proceeding with the execution proceedings, the petitioner, in order to prevent the decree-holder from proceeding further, filed W.P. No. 5146 of 1988 challenging the jurisdiction of the Master to execute the decree and also sought a declaration that rule 10 (xxix) of Order 1 and rule 4(3) of Order 1 of the Original Side Rules of the High Court of Madras are ultra vires and unconstitutional in view of sections 37, 38 and 128 of the Code of Civil Procedure as they were framed by the High Court of Madras without any authority under law. Learned single judge of this court, by order dated July 18,1988, dismissed the said writ petition. Aggrieved by the said decision, the petitioner filed W.A. Nos. 970 and 1333 of 1988 against the order in W.M.P. No. 8779 of 1988 in W.P. No. 5146 of 1988 and in W.P. No. 5146 of 1988. THE Division Bench of this court, by order dated January 19, 1989, granted permission as prayed for in C.M.P. No. 15549 of 1988 and observed that it would be open to the first respondent in the said C.M.P. (the petitioner herein) to raise all objections except as to jurisdiction with reference to the execution including settlement of proclamation, etc., in other words, the execution petition could be continued before the learned single judge on the original side from the stage at which the matter stood then. With these observations, the writ appeals were disposed of.

(3.) ON notice from the court, Mr. J. Jayaraman and Mr. N. V. Balasubramaniam, standing counsel for the Department appeared on behalf of the third respondent.