1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.46 OF 1997 1. Smt. Savitri Poto Gaonkar widow of ) Poto Mono Gaonkar, ) House wife (Deceased) ) [Amendment Carried out as ) per order dtd. 22/8 / 2 003 in ) MCA 432/03 in SA 46/97] ) 2. Master Manohar Poto Gaonkar ) aged 16 years, minor represented by ) his next friend Smt. Savitri Poto Gaonkar,) both 1 & 2 are resident of Undorna in ) V.P. Molcornem of Quepem, Taluka ) 3. Smt. Kashi Narayan Gaonkar, ) major, housewife, and her husband. ) 4. Shri Narayan Babu Gaonkar, ) major, agriculturist, both 3 and 4 are ) resident of Molcopona in V.P. ) Molcornem of Quepem Taluka ) ..Appellants. (Ori. Plaintiffs.) Versus 1. Shri Jaganath Cau Bhomkar ) (Since deceased) ) [Amendment carried out as per ) court's order dated 29/10 / 99) in ) MCA 313/99) ) 2 ) 1(A) Smt. Mirabai Jagannath Bhomkar, ) major, married, wife of the deceased ) 1(B) Kum. Arati Jagannath Bhomkar, ) major, unmarried, daughter of the deceased ) 1(C) Kum. Seema Jagannath Bhomkar, ) major, unmarried, daughter of the deceased ) 1(D) Kum Gauri Jagannath Bhomkar, ) major, unmarried, daughter of the deceased ) 1(E) Kumar Krantikumar Jagannath Bhomkar,) major, unmarried, son of the deceased. ) All the respondents no.1(A) to 1(E) residing at) Savordem, Taluka Sanguem – Goa. ) 1(F) Shri Premanand D. Batikar, ) major, married, son- in- law of the deceased. ) 1(G) Smt. Priya Premanand Batikar ) major, married, daughter of the deceased. ) Both respondents no. 1(F) and 1(G), residing ) near Figueredo Ground, Pantemol Curchorem- ) Goa. ) 1(H) Shri Santosh Gawde, ) Son- in- law of the deceased. ) 1 (I) Smt. Jyoti Santosh Gawde, 3 major, married, daughter of the deceased. ) Both respondent no.1 (H) and 1 (I), residing ) at Ponda, Keri – Goa 2. Shri Mahadeo Poto Gaonkar, aged ) 65 years, resident of Undorna in Quepem ) Taluka (deceased) represented by his ) legal heirs. ) (a) Shri Poto Mahadeo Gaonkar ) son, married, and his wife. ) (b) Smt. Sundarem Poto Gaonkar, ) both r/o Undorna, Quepem Goa. ) (c ) Shri Krishna Mahadeo Gaonkar, ) son, married, and his wife. ) (d) Smt. Vithem Krishna Gaonkar, ) both r/o Undorna, Quepem Goa. ) (e) Smt. Shanem Shanu Gaonkar, ) daughter, and her husband(since deceased) ) [Amendment caried out as per Court's ) Order dated 29/10 /1 9 99 in MCA 510/99] ) 2(e)(i) Shri Srikant Shanu Gaonkar, ) major, bachlor, son of the deceased ) respondent. ) 2(e)(ii) Ms. Shekuntala Shanu Gaonkar, ) major, spinster, daughter of the deceased ) respondent. ) (All residing at Soliem, Cacoda, Quepem - ) 4 Goa.) ) (f) Shri Shanu Gaonkar ) both r/o Soliem, Cancoda Quepem, Goa. ) (g) Smt. Bhaguem Yeshwant Gaonkar ) daughter, and her husband. ) (h) Shri Yeshwant Gaonkar ) (since deceased) ) [Amendment carried out as per order ) dated 25/09 / 9 8 in MCA 55/98] ) 2(h)(i) Shri Paresh Yeshwant Gaonkar ) (Deceased) major, son of the deceased, R/o Undorna ) Quepem, Goa ) [Amendment carried out in view of the ) order dtd17 /6 / 0 5 passed in MCA 395/05] ) 2(h)(ii) Master Vidyanand Yeshwant ) Gaonkar, minor, 15 years old, son of ) the deceased, represented by his mother ) and natural guardian Smt. Bhaguem ) Yeshwant Gaonkar namely the ) respondent no. 2(g) R/o Undorna, ) Quepem, Goa. ) (i) Smt. Pitol Gurudas Gaonkar, ) daguther, and her husband ) (j) Shri Gurudas Gaonkar, ) both r/o Soliem Cacoda Quepem Goa. ) (k) Smt. Jayashree Prakash Borkar ) daughter, and her husband, ) (l) Shri Prakash Borkar, ) 5 both r/o Kalay, Sanguem Goa. ) (m) Smt. Jayem Bhiku Gaonkar, ) daughter and her husband ) (n) Shri Bhiku Custa Gaonkar, ) both r/o. Wadem Sanguem Goa. ) 3. Shri Bhicu Kusta Gaonkar, aged ) 48 years, r/o Undorna in Quepem ) Taluka. ) 4. Shri Bhavani Sazu Naik, major, ) r/o Amona in Quepem Taluka, ) (expired) ) 4a. Prabhakar Sazu Naik ) 4b. Visranti Prabhakar Naik ) r/o Odar, in Quepem, ) 4c. Shashi Babusso Naik ) 4d. Mrs. Shashi Babusso Naik ) 4e. Umesh Babusso Naik ) r/o. Amona, Bicholim ) ) 5. Shri Hussainkhan, major (since deceased)) [Amendment carried out in view of the ) order dated 20/1 / 0 5 passed in MCA110/04) 5(i) Mrs. Aisha Bi ) wife of the deceased respondent no.5 ) 5(ii) Shri Aziz Khan Patan ) major, married son of the deceased ) respondent No.5 and his wife ) 5(iii) Smt. Shabina Bi. ) 5(iv) Shri Kadar Khan Patan ) major, bachelor son of the deceased ) 6 respondent no.5. ) 5(v) Shri Samir Khan Patan, ) major, bachelor son of the deceased ) respondent No.5 ) All resident of house no.10, Dando ) Sanguem Goa. ) 5(vi) Smt. Nurjahan Bi ) major, married, daughter of the ) deceased respondent no.5 and her ) huband ) 5(vii) Shri Munaf Sayyed ) Both residing at House no.117, ) Varcotto, Sanguem Goa ) 5(viii) Smt. Parvin Bi ) major, married, daughter of the ) deceased respondent no.5 and her ) husband. ) 5(ix) Shri Ashraf ) 5(x) Smt. Abida Bi ) major, married, daughter of the ) deceased respondent no.5 and her ) husband ) 5(xi) Shri Munaf ) All residing at house no.10, ) Dando Sanguem Goa ) Respondents. (Ori. defendants.) Shri V.P. Thali, with Ms. G. Pednekar, Advocates for the Appellants. Shri S.G. Dessai, Senior Advocate with Shri Shivan Dessai, Advocate for Responents Nos. 1(A) to (I), 2(A) to 2(E)(I) and (II), 2(G), 2(I) to 2(N) and 3 and 4(b). 7 Mr. Aires Mesquita, Advocate for Respondents No.4 and 5 (absent) CORAM: V.M. KANADE, J. DATE : 5TH AUGUST, 2005 ORAL JUDGMENT: 1. The appellants are the original plaintiffs and the respondents are the original defendants. The appellants are challenging the judgment and order passed by both the lower Courts dismissing the suit of the plaintiffs on the preliminary issue by holding that the suit is not maintainable being barred by Rule (92)(3) of Order XXI of the Civil Procedure Code. The second appeal was admitted on 04/02 / 2 0 00 and an ad- interim relief was granted in Civil Application No. 172 of 1997. The second appeal was admitted on the substantial questions of law formulated in para 2 of the Appeal Memo which are reproduced hereinbelow:- “1. Whether the property which is neither the subject matter of execution application or attachment order, nor proclamation of sale and which is factually not auctioned at all in the court auction, and which is also not referred to in minutes of auction can be included for the purpose of issuing of certificate at the time of the confirmation of sale? 8 2. Whether the suit is hit by Order 21 rule 92(3) of C. P. C. for setting aside the sale of a property which was never auctioned in the court auction but which was mentioned for the first time at the time of confirmation of sale? 3. Whether, the issue (Whether the defendants prove that the suit is barred by the principles of res judicata or principles anologous to res judicata or under Order XXI Rule 92 (3) of C. P. C.?) is purely question of law or mixed question of fact and law? 4. Whether the Civil Court could dispose off the suit by disposing off the issue as preliminary issue when the same pertained to the mixed question of law and facts?” FACTS: 2. Brief facts are as under :- 3. There is a long chequered history of several litigations between the parties and since the litigations are interlinked, it would be relevant to briefly state the chronology of events in order to 9 properly understand the substantial questions of law which have arisen in this second appeal. 4. The first litigation started in 1972 when the respondent No.1 Jagannath Cau Bhomkar (since deceased) filed a Regular Civil Suit No. 20 of 1972 against Poto Mono Gaonkar (late husband of the appellant No.1). This suit was filed to recover the amount of Rs 3,500 /- with interest which had become due and payable as a result of Hundi dated 23/06 / 1 971. The appellants were not parties to the said suit as they are successors in interest of the said Poto Mono Gaokar. On 09/10 / 1 975, the said Civil Suit No. 20 of 1972 was decreed and the said Poto Mono Gaonkar was directed to pay Rs 3,500 /- along with interest @ 9% with costs from the date of filing of the suit till the final payment to Jagannath who was the respondent No.1 in the present appeal. On 13/01 / 1978, Execution Application No. 1 of 1978 was filed by respondent No.1 (Hereinafter referred to as “Jagannath”) for execution of the decree passed in Regular Civil Suit No.22 of 1972. In the said application, various particulars of the amounts which were due and payable were mentioned and, further, an application for attachment of the following seven properties was filed. “i) “Culna” situated at Undorna, Quepem enrolled in Taluka Revenue Office under no.2. 10 ii) “Ponssol” situated at Undorna, Quepem enrolled in Taluka Revenue Office under no.16. iii) Borod Somodiano ½ part - 1 st adicao bearing Land Registration no. 7980. iv) Borod Somodiano ½ part - 2 nd adicao bearing Land Registration no.7981. v) Borod Somodiano ½ part - 3 rd adicao bearing Land Registration no.7982. vi) Suktolem Poiquim alias Valisordo bearing Land Registration no. 7983 and vii) ½ Ambeapani Poiquim bearing Land Registration no.7984.” These properties were situated in village Malcornem. The properties at serial Nos. (vi) and (vii) were survyed under Survey Nos. 5/2, 5/3, 5/6 to 5/13, 5/16 to 5/19 and 5/23 to 5/32 of village Malcornem. The order of attachment was passed by the Court. However the properties were not identified by the Survey Numbers. It is the case of the plaintiffs that as regards the properties which were subsequently sold in the auction proceedings, the minutes of auction also did not mention the Survey Numbers and the respondents also did not disclose the Survey Numbers in the various replies which were filed by them. It is the case of the appellants / plaintiffs that in the settlement of proclamation of claim, as given by the decree holder also, only five properties are mentioned at serial Nos. B(e)(iii) to B(e)(vii). The Executing Court passed an order of attachment of the said properties 11 on 22/02 / 1 978. Thereafter, the terms of settlement of proclamation of sale was filed by Jagannath on 9/10 / 1978. The auction was fixed on 31/03 / 1 979. By that time, Poto Mono Gaokar had expired and the appellant No.1, who was the wife of late Poto Mono Gaokar, objected the sale on the ground that she was the moitty holder and, therefore, the properties should not be sold. Another application was filed by one Sundarem Malic, objecting the attachment of sale on the ground that she was having 1/3 rd share in the property. Both the applications were dismissed and the auction was held on 31/03 / 1 979. In the minutes of the auction, neither the Survey Numbers nor the land registration numbers of the said properties were mentioned but only the names of the properties were mentioned. The said five properties were purchased by respondent Nos. 2 to 5. Thereafter, various applications were filed by the appellant No.1 and other persons, claiming interest in the property and, finally, on 09/04 / 1 990, the Civil Judge, Senior Division dismissed the applications of Sundarem and two another claimants i.e. Suryaji and Shivram Malcornekar and confirmed the sale of five properties which were sold in auction. 5. The Civil Judge, Senior Division, while confirming the sale by order dated 09/04 / 1 9 90 also included survey No.3/1 of village Molcornem which was the property named as “Ambeapani Ghorbhat” having Land Registration No. 16857and admeasuring about 31 12 Hectares. The principal controversy in the present suit is that the appellant claims that the said survey No.3/1 was neither attached nor was ever referred to in any of the proceedings. The said Survey Number was not mentioned in the minutes of the auction nor in any of the replies filed by Jagannath and others and, for the first time, the said Survey Number was incorporated by the Civil Judge, Senior Division in his Order dated 09/04 / 1990, confirming the auction sale. The contention of the plaintiffs is that the said property was not the subject matter of the auction proceedings at any time and, therefore, could not have been included for the first time in the order of confirmation of sale dated 09/04 / 1990. 6. Against the said order dated 09/04 / 1990, the appellants, initially, filed an appeal being Regular Civil Appeal No. 41 of 1990. However, it was dismissed by order dated 20/11 / 1992 and, thereafter, the appellants filed the Regular Civil Suit No. 29 of 1991. One of the reliefs claimed in the said suit was that the property bearing Survey No. 3/1 of Village Undorna in Quepem Taluka was not the subject matter of sale in execution proceedings No.1/78 in the Court of Civil Judge, Senior Division at Quepem. The defendants filed Written Statement and, inter alia, raised a preliminary objection regarding the maintainability of the suit on the ground that, firstly, it was not maintainable in view of the provisions of Rule 92(3) of Order XXI of the Civil Procedure Code and also on the ground of res 13 judicata. The trial court dismissed the suit on the ground that it was not maintainable as it was barred by Rule 92(3) of Order XXI of the C.P.C. Against the said order, the appellants preferred an appeal bing Regular Civil Appeal No. 41 of 1990. The District Court also dismissed the appeal on the same ground. Against the said judgment and order, the present second appeal has been filed. In the said second appeal, in Civil Application No. 172 of 1997, the learned Counsel appearing on behalf of the respondents made a statement before the Court on 24/10 / 1 997 that the respondents shall not take possession or interfere with the property mentioned in paras 2(d), 2(e) and 2(f) of the plaint. Thereafter, an application was preferred by the respondents for vacating the said order. However, by order dated 24/12 / 1999, it was directed that all applications viz. Misc. Application Nos. 172/1997, 177/1999 and 178/1998 be heard alongwith the main appeal at the time of final hearing of the said appeal. SUBMISSIONS : 7. The learned Counsel appearing on behalf of the appellants submitted that both the lower Courts had failed to consider that the property bearing Survey No. 3/1 was neither mentioned in the application for execution nor it was attached or referred to in the proclamation of sale and the said property in question was, factually, therefore never sold in auction and, therefore, the provisions of section 92(3) of Order XXI would not be applicable and, therefore, the suit filed by the appellants was maintainable. He further submitted 14 that the issue which was framed as a preliminary issue was a mixed question of fact and law and, as such, it was essential that the parties should have been permitted to lead evidence and, therefore, the suit would not have been dismissed solely on the basis of the said issue. He further submitted that since the preliminary issue which was framed was a mixed question of fact and law and not purely a question of law, in view of the provisions of Order XIV Rule 2, all other issues which were framed ought to have been decided alongwith the preliminary issue after an opportunity was given to both the parties to lead evidence. He submitted that the appellants had no occasion to file any objection in respect of the inclusion of Survey No.3/1 and the said Survey Number was mentioned for the first time in the order of the Executing Court dated 09/04 / 1990 and that it was inadvertently mentioned as one of the properties which was sold in auction when the entire documentary evidence clearly showed that, that was not the case. The learned Counsel appearing on behalf of the appellants submitted that the grievance of the appellants, as set out in the present proceedings, would have been agitated only by a separate suit and not by way of an application under Order XXI Rules 89, 90 and 91 of the C. P. C. as the said provisions would be attracted only if there was an actual auction sale or a dispute in respect of the description of he property and since there was no sale of the property at Survey No.3/1 the said provision including the bar under Rule 92 (3) of Order XXI would not be attracted in the facts of the present 15 case. The learned Counsel appearing on behalf of the appellants relied on number of judgments which shall be referred to hereinafter. 8. The learned Counsel appearing on behalf of the respondents vehemently opposed the submissions made by the learned Counsel appearing on behalf of the appellants. He has filed written arguments. He submitted that one of the substantial questions of law framed by this Court vide Order dated 04/02 / 2000 relates to the bar under Order XXI Rule 92(3) of the Civil Procedure Code and, therefore, on that ground alone, the second appeal was liable to be dismissed. It was, thereafter, submitted that against the order dated 09/04 / 1 990, the appellants had a legal remedy of filing an appeal from order. He submitted that the appellants had filed an appeal against order and had subsequently withdrawn the same. He submitted that, therefore, the second suit which was filed by the appellants was against the provisions of Order XXI Rule 92(3) of the Civil Procedure Code and, therefore, both the lower Courts had correctly dismissed the suit of the appellants. The learned Counsel, thereafter, submitted that the sale of wrong property or a property not attached or confirmation of sale of a wrong property or the property not attached or sold or any material irregularity or fraud in publishing or conducting a sale in an execution proceedings, raises a question relating to the execution, discharge or satisfaction of decree within the meaning of section 47 of the C. P. C. He submitted that 16 this question was to be determined by the Executing Court and not by a separate suit in terms of the mandate of section 47 of the C. P. C. He submitted that section 47(II)(b) of the C. P. C. further lays down that all questions relating to delivery of possession of such property to such purchaser or his representative is a question relating to the execution, discharge or satisfaction of the decree within the meaning of section 47 of the C. P. C. He submitted that, therefore, the question, if any, the appellants wanted to raise, ought to have been raised in the Execution Application No. 1/1978 and not by filing a separate suit. He further submitted that the question whether the suit is barred under Order XXI Rule 92(3) of the Civil Procedure Code is a question of law and that had been answered by the trial court and the appellate court on the basis of the pleadings and documents produced by the appellants and that the preliminary issue was framed by resorting to Order XIV Rule 2 (2) of the Civil Procedure Code which empowered the trial court to frame the preliminary issue relating to the jurisdiction of the Court or bar to file the suit. He submitted that the appellants did not claim any right to lead evidence in respect of the preliminary issue and, therefore, the question of leading evidence did not arise. He, thereafter, submitted that the subject matter of the suit was the subject matter of the auction held in execution proceedings which was clear from the impugned order dated 09/04 / 1 990. The question, therefore, of filing the second suit would not arise. The learned Counsel for the respondents, thereafter, relied 17 upon the judgment of the Supreme Court in the case of Govindraju Vs Mariamman reported in 2005 SC 1008 wherein the Supreme Court has laid down the limitations of the High Court in exercising its jurisdiction under section 100. He also relied upon the judgment of the Supreme Court in the case of Chunilal V. Mehta & Sons Ltd. Vs. Century Spinning and Manufacturing Company Limited reported in AIR 1962 SC 1314 wherein the Supreme Court has laid down the test for determining the substantial question of law. He further relied upon the judgment of the Supreme Court on the same point in the case of Santosh Hazari Vs. Purushottam Tiwari reported in 2001(3) SCC 179. He also relied upon the other judgments of the Supreme Court which laid down the limited jurisdiction of the High Court under section 100 of the Civil Procedure Code. The learned Counsel thereafter distinguished the judgments on which the reliance was placed by the learned Counsel appearing on behalf of the appellants. FINDINGS: 9. In order to decide the substantial questions of law which are formulated by this Court when the matter was admitted, it will be relevant to consider the factual matrix of the matter. The appellant No.1, in the present case, is the wife of Poto Mono Gaonkar who was the defendant and judgment debtor in the earlier suit which was filed by respondent No.1 Jagannath in 1972. It will be relevant to consider reliefs which are claimed by the present appellants in the plaint. The appellants have claimed the following reliefs in the plaint. 18 “(a) That the sale of the properties in court auction dated 31- 3-1979 in Execution Proceedings No.1/78 and the confirmation of sale by Order dated 9-4-1990 in Execution Proceedings No.1/78 by the Civil Judge, Senior Division, Quepem be set aside. (b) That it be declared that the property described in para 2(f) bearing No.3/1 of Village Undorna in Quepem Taluka is not the subject matter of sale in Execution Proceedings No.1/78 in the Court of the Civil Judge, Senior Division, at Quepem. (c) That the defendants Nos. 2 to 5 i.e. the purchasers in Execution Proceedings No.1/78 be restrained by an Order in the nature of Permanent Injunction from taking over the possession of the properties mentioned in para 2(d), 2(e) and 2(f). (d) That the defendants be restrained by an Order and Decree in the nature of Permanent Injunction from interfering in any manner in the 19 properties described in para 2(d), 2(e) and 2(f) above. (e) For the costs of the suit and any other equitable reliefs as the court deems fit and proper in the circumstances of the case.” In para 18 of the plaint, it is stated that the proper subject matter of the suit is the properties described under 2(d), 2(e) and 2(f). It would be, therefore, necessary to consider what are the properties which are mentioned under 2(d), 2(e) and 2(f). “2(d) The property “SUCTOLEM POIQUIM alias VALISOROD”, registered under No.7983, situated at Undorna of Molcornem of Quepem Taluka and bounded by East: by the property Peddeamola of Comunidade; to the West: by rivulet and aforamento Gogeamollo of Suble Porob; to the North: by the property Ambeapani Poiquim of Saguna Poto Gaonkar and others and to the South: by the property Talliband of Saguna Poto Gaonkar and others. 2(e) The property “AMBEAPANI POIQUIM”, paddy filed, situated at Undorna of Molcornem of Quepem Taluka, registered under No.7984 and 20 bounded as follows: East: by paddy field Ambeapani of Pundalica Borkar and others; to the West: by rivulet i.e. Permanent water stream; to the