Application for set aside sale dismissed for default without restoring it separate suit not maintainable.
Citation
AIR 2018 SC 3080
Siddagangaiah and other vs N.K.Giriraja Shetty and other
Head note
Code of Civil Procedure, 1908 – Order 21, Rule 72 – Transfer of Property Act, 1882 – Section 52 – Maintainability of Suit – Whether owing to dismissal of application filed under Order 21, Rule 90 by plaintiff, present suit could be said to be maintainable.
Court held – Auction purchase made by decree-holder had attained finality –Confirmation of sale was not questioned by Plaintiff – no relief could have been granted and earlier orders have attained finality and operate as bar for entertainment of fresh suit – Once auction has not been questioned and there is bar created by Order 21, Rule 92(3), all these questions cannot be agitated or urged – Plaintiff has not come to court with clean hands as such he could not be said to be entitled to any relief on grounds so urged – High Court has also erred in dismissing second appeal on impermissible grounds – judgment and decree passed by first Appellate Court, as affirmed by High Court, deserves to be and are hereby set aside, and suit of plaintiff is ordered to be dismissed – Appeal allowed.
(Paras: 28, 38, 43)
Cases Referred:
Rajender Singh v. Ramdhar Singh and Ors., AIR 2001 SC 2220
Brahayya v. Appayya, (1921) 44 Mad. 351 : 62 IC 203 : AIR 21 Mad. 121,
Ma Saw v. Maung Kyaw, AIR 28 Rang 18;
Nand Kishore v. Sultan, AIR 1926 Lah. 165.
Superior Bank Ltd. v. Budh Singh, (1924) 22 All. L.J. 413;
Akshia v. Govindarajulu (1924) 47 MLJ 549.
Nagubai Ammal and Ors. v. B. Shama Rao and Ors. AIR 1956 SC 593
Sadhu Singh v. Gurdwara Sahib Narike and Ors. (2006) 8 SCC 75
Nani Gopal Paul v. T. Prasad Singh and Ors. (1995) 3 SCC 579.
Lal Chand v. VIIIth Addl. District Judge and Ors. (1997) 4 SCC 356
V. Swarajyalaxmi and Ors. v. Authorised Officer, Land Reforms, AIR 2003 SC 2347
Comparative Citations:
2018 (7) Scale 556, 2018 (186) ALLINDCAS 9, 2018 AIR(SC) 3080, 2018 (7) SCC 278, 2018 (129) ALLLR 230, 2018 (5) MLJ 880, 2018 (3) CivCC 592, 2018 (3) ICivC 971, 2018 (4) AIR(Kar) R 4, 2018 (5) LW 193, 2018 (5) MLJ 880,
Court held – Auction purchase made by decree-holder had attained finality –Confirmation of sale was not questioned by Plaintiff – no relief could have been granted and earlier orders have attained finality and operate as bar for entertainment of fresh suit – Once auction has not been questioned and there is bar created by Order 21, Rule 92(3), all these questions cannot be agitated or urged – Plaintiff has not come to court with clean hands as such he could not be said to be entitled to any relief on grounds so urged – High Court has also erred in dismissing second appeal on impermissible grounds – judgment and decree passed by first Appellate Court, as affirmed by High Court, deserves to be and are hereby set aside, and suit of plaintiff is ordered to be dismissed – Appeal allowed.
(Paras: 28, 38, 43)
Cases Referred:
Rajender Singh v. Ramdhar Singh and Ors., AIR 2001 SC 2220
Brahayya v. Appayya, (1921) 44 Mad. 351 : 62 IC 203 : AIR 21 Mad. 121,
Ma Saw v. Maung Kyaw, AIR 28 Rang 18;
Nand Kishore v. Sultan, AIR 1926 Lah. 165.
Superior Bank Ltd. v. Budh Singh, (1924) 22 All. L.J. 413;
Akshia v. Govindarajulu (1924) 47 MLJ 549.
Nagubai Ammal and Ors. v. B. Shama Rao and Ors. AIR 1956 SC 593
Sadhu Singh v. Gurdwara Sahib Narike and Ors. (2006) 8 SCC 75
Nani Gopal Paul v. T. Prasad Singh and Ors. (1995) 3 SCC 579.
Lal Chand v. VIIIth Addl. District Judge and Ors. (1997) 4 SCC 356
V. Swarajyalaxmi and Ors. v. Authorised Officer, Land Reforms, AIR 2003 SC 2347
Comparative Citations:
2018 (7) Scale 556, 2018 (186) ALLINDCAS 9, 2018 AIR(SC) 3080, 2018 (7) SCC 278, 2018 (129) ALLLR 230, 2018 (5) MLJ 880, 2018 (3) CivCC 592, 2018 (3) ICivC 971, 2018 (4) AIR(Kar) R 4, 2018 (5) LW 193, 2018 (5) MLJ 880,
Comments
Post a Comment