V.K. Bali, J. - (1.) HANS Raj, survived by his widow, Maya Devi, embroiled Smt. Raj Kumari Bhatia for nearby two and half decades in execution proceedings, giving rise to present Letters Patent Appeal, by moving series of applications in resisting the decree that came to be passed against him. Whether there was any substance, merit or even a tinge of these in the objections filed in resisting the decree or that all these were an endeavour to manoeuvre the things from time to time, is the question that needs adjudication in this case. Before we may, however, come to the only objection now seriously mooted before us in nullity or non -executable, it will be necessary to give backdrop of the events, culminating into present Letters Patent Appeal under Clause X of the Letters Patent.
(2.) SMT . Raj Rani Batra (hereinafter referred to as the 'Decree Holder') successfully brought a suit for recovery of Rs. 60,000/ - plus costs and interest as the same stood decreed vide judgment dated October 25, 1976. She moved an application for execution of the decree aforesaid on December 2, 1976 and was able to obtain on order of attachment of property, i.e. SCF No. 9, Sector 27 -D, Chandigarh on December 2, 1976. Vide a separate order dated April 15, 1978, on an application moved on that behalf, she was also successful in obtaining an order that she could participate in the auction sale. She did participate in the auction which was held on April 17, 1978. SCF No. 9, Sector 27 -D, Chandigarh was auctioned for an amount of Rs. 82,000/ - which was the highest bid given by her. She had also obtained another decree for recovery of money against Shri Hans Raj (hereinafter referred to as the 'Judgment Debtor') from the Court of Senior Sub Judge, Chandigarh, which was transferred to the Court, before which execution proceedings were pending. The Judgment Debtor filed objections under Order 21 Rule 90 of the Code of Civil Procedure objecting to attachment and auction of the property in question. During the pendency of his objections, the parties arrived at a compromise, terms whereof were as follows: - "The sale of the property in question, i.e. SCF No. 9 Sector 27 -D, Chandigarh, may be confirmed subject to the condition of payment of Rs. 35,000/ - (Rupees Thirty Five Thousand only) to the Judgment Debtor in full and final settlement of the claim of the decree holder against the judgment debtor and also any charge of the Estate Officer, U.T., Chandigarh, on this property. The amount of Rs. 35,000/ - will be paid by the decree holder to the judgment debtor on 16.7.1979 before this Hon'ble Court and the judgment debtor will hand -over the vacant possession of this building to the decree holder on this date, i.e. 16.7.1979 by delivering the keys of the premises. In case the decree holder does not turn up on that date to fulfil his part of the said compromise, the judgment debtor shall have a right to deposit the decretal amount in the court in pursuance of the order of the Hon'ble Court dated 25.5.1979 till 31.7.1979. That incase the judgment debtor does not deliver the possession of the building to the decree holder, the decree holder shall deposit the amount of Rs. 35,000/ - in the Court and the judgment debtor shall not withdraw the amount from the court until the possession is delivered to the decree holder through Court, and the decree holder shall have a right to take the possession through process of law, and the non -delivery of possession shall not affect the confirmation of the sale in any manner."
(3.) THIS compromise was submitted in the Court as Ex.PC. The statements of the parties alongwith their counsel were recorded and the case was adjourned to July 16, 1979. On the adjourned date i.e. July 16, 1979, the decree holder deposited Rs. 35,000/ -, but the Judgment Debtor moved an application before the Court pleaded therein that the compromise was result of fraud and was unforceable as also void ab -initio. The Executing Court, vide order dated August 30, 1979 dismissed this application/objections and ordered confirmation of sale held on April 17, 1978 and also ordered issuance of sale certificate which was then issued by the Court on September 11, 1979, for an amount of Rs. 82,000/ -. On September 11, 1979 the decree Holder filed an application under Order 21 Rule 95 C.P.C. for delivery of possession and issuance of warrant of possession. This was physically resisted by the Judgment Debtor. Meanwhile, FAO No. 502 of 1979 against orders dated August 30, 1979 was filed in this Court. It is the case of Judgment Debtor that the same was heard on the date when Bailiff went for delivery of possession. This Court, in the FAO aforesaid, had initially granted stay of dispossession of - Judgment Debtor but the same was later on vacated. Constrained Judgment Debtor filed a SLP in the Hon'ble Supreme Court in which initially stay was granted but it is an admitted position that the SLP, referred to above, - was also dismissed. Meanwhile, learned Single Bench of this Court vide orders dated March 31, 1981 dismissed the FAO aforesaid. Inasmuch as the only contention raised by learned counsel representing the Judgment Debtor emanates from some observations made by learned Single Judge of this Court in FAO No. 502 of 1979, it will be appropriate at this stage itself to produce the said observations. Same read thus : - "Lastly, it was contended that the sale having been held in violation of the provisions of Rules 84 and 85 of Order 21 Civil Procedure Code, the alleged compromise was hit by the provisions of Sec. 23 of the Contract Act and, therefore, could not be enforced. To elaborate this contention, the learned counsel for the appellant contended that any sate conducted in violation of the said provisions, as held in Mani Lal Mahan Lal Shah and Ors. v/s. Sardar Mahmad and Anr. in a nullity and any compromise to confirm such sale would obviously be illegal and not enforceable in a court of law. The argument is wholly misconceived and proceeds on an erroneous basis. If the sale held by the Court was to be confirmed, the argument would have been unexceptionable. On the contrary, the sale has now been confirmed on the terms agreed to between the parties which certainly amounts to the adjustment of the decree within the meaning of Rule 2 of the Order 21 Civil Procedure Code. As noticed above, the sale had been held for an amount of Rs. 82,000/ - only whereas under the compromise, not only the claims under the present decree but all other claims of the decree holder are to stand satisfied and also he had to pay Rs. 35,000/ - apart from taking responsibility for discharging the liability of judgment debtor, if any, to the Estate Officer, Union Territory, Chandigarh. This adjustment cannot be said to be illegal because of the non -compliance with rules 84 and 85 of Order 21 Civil Procedure Code and the provisions of Sec. 23 of the Contract Act, therefore, would not be a bar against the enforcement of the said compromise or adjustment." Despite rejection of earlier applications as also FAO No. 502 of 1979, Judgment Debtor filed yet another application on January 8, 1982 raising objections against the auction sale and sale certificate issued on September 11, 1979, under Sec. 47, 60(ccc) and Order 34 Rule 14 read with Sec. 151 C.P.C. Meanwhile the Decree Holder filed an application for restoration of the earlier execution proceedings. This application was allowed and execution application was revived, Yet another application was moved by the Decree Holder for issuance of warrant of possession which was actually issued by the Court on January 7, 1985. This order was resisted on the ground that there was no decree for possession in existence and, therefore, warrant of possession could not be issued under Order 21, Rule 35 C.P.C. The Judgment Debtor filed yet another application raising further objection. Whereas, application moved by the Decree Holder was allowed, one filed by the Judgment Debtor in resisting the decree was dismissed vide order dated October 5, 1987. Constrained, the Judgment Debtor filed execution First Appeal No. 421 of 1988 which was dismissed in limine by learned Single Judge of this Court on September 26, 1988. Still not satisfied, present LPA has been filed.;