MOHAMMAD YUNUS Vs. MOHAMMAD MUSTAQIM

JUDGEMENT

(1.) This special leave petition directed against the judgment and order of the Delhi High Court dated September 3, 1980 must fail as the decision of the High Court on merits is unassailable. But in view of the growing tendency of litigants of by-passing the normal remedy of an appeal or revision by moving the High Court with petitions under Art. 227 of the Constitution, we deem it necessary to give the reasons therefor.

(2.) It appears that the property belonging to the surety Mohd. Salam comprised of a house situate at Katra Sheikh Chand Lal Kuan, Delhi was sold by the Subordinate Judge, Delhi in execution of as ex parte decree in favour of Mohd. Mustaqim due to the failure of the judgment-debtor Hakim Mazhar-ud-Din to satisfy the decree on May 24, 1972. On June 9, 1972 the surety made an application under S. 151 of the Code of Civil Procedure, 1908 without specifying whether it was under O. XXI, R. 89 or R. 90. The learned Subordinate Judge by his order dated June 10, 1972 treated the application to be under O. XXI, R. 89 and the surety opted to elect it as such and prayed for time to deposit the solarium equal to 5% of the purchase money for payment to the auction-purchaser Chuni Lal, but failed to make such deposit till his death on July 22, 1972. At no stage of the proceedings did the surety assert that the decree had been satisfied out of Court nor did he make an application under O. XXI, R. 2 for certification of adjustment. He died leaving behind him a son named Mohd. Karim and a daughter named Mst. Rabia Khatoon, both of whom were apparently settled in Pakistan. After his death, on August 11, 1972, the petitioner who is a total stranger to the estate of the deceased surety, made an application stating that his name be substituted as he was the grand-nephew of the surety and also his heir and successor-in-interest under an alleged will executed by the surety on July 20, 1972 i. e. two days before his death. On the same day, there was an application moved by the decree-holder stating that the surety had already made payment of the decretal amount and costs to him before the sale was held on May 24, 1972 and that full satisfaction of the decree may be recorded. The respondent, who is the auction-purchaser, contested the claim of the petitioner and pleaded inter alia that the genuineness of the alleged will is open to question apart from its validity as it was affected by the doctrine of marz-ul-maut and that, in any event the alleged adjustment could not affect his right or title to the property in dispute as an auction-purchaser.

(3.) The learned Subordinate Judge by his order dated November 23, 1972 held that there was no question of allowing the substitution of the name of the petitioner by the Court under its inherent powers. On December 15, 1972 the petitioner moved another application under Sec. 151 of the Code for setting aside the sale on the ground that there was material irregularity in publishing and conducting the same and also to record satisfaction of the decree and set aside the sale. That application of his was disallowed by the learned Subordinate Judge by his order dated November 9, 1973 on the ground that his earlier order dated November 23, 1972 holding that the application made by the surety purporting to be under O. XXI, rule 89 stood disposed of as he did not comply with the requirements of rule 89, operated as res judicata, and no question of invocation of the inherent powers of the Court arose and further that the application made by the petitioner treated as an application under O. XXI. rule 89 was barred by limitation as it was filed beyond the period of 30 days prescribed by Art. 127 of the First Schedule to the Limitation Act. 1963.