You can file application for dismissal on grounds of non appearance of advocate as well as JD 

2) when earlier application is pending second application is not maintainable 

A. Yes. 

B. Order 2 rule 2 cpc is not applicable in such circumstances. However, you can raise objection highlighting pendency of earlier application. 

C. Order 2 Rule 2 is not applicable as objection in execution petition does not amount to claim and is not a suit. 

- As per law, an application must be supported with an Affidavit in all the civil cases, 

- Since, the second application filed by the JD is without without Vakaltnama / without Signature of JD / without Affidavit of JD / without No objection from earlier advocate , and hence this application is maintainable 

- Hence the DH can raise this issue before the court for dismissal of the application on the ground of maintainability.

- As per the matter in Pothuri Thulasidas versus Potru Nageswara, AIR 2005 AP 171, once decree reached finality, it is not open to JD to plead new facts in execution proceedings.

Any application filed by an applicant in the civil matter should be accompanied by an affidavit and the application should be signed by the advocate on record.

Besides the affidavit should have been sworn and the affirmation should be attested by an independent advocate.

The second application appears to lack the compliance of the mandatory procedures laid down as per law, hence if strongly argued and the defects being highlighted, the second application is liable to be dismissed.The first application filed by the previous advocate has to be argued upon on merits and on the grounds of non appearance of the JD as well as for not being represented by the advocate concerned, the same is also liable to be dismissed.  

Thus you can inform your advocate to present strong arguments accordingly and get both the applications dismissed. 

If the second advocate is not authorized by the AOR, he cannot appear or file application. Also under same provision, second application not maintainable. On this ground, SA liable to be dismiss. 

Yes.

Does not apply.  

A. Yes.

B. Order 2, Rule 2 of the CPC does not find relevance in these particular circumstances. Nonetheless, you have the option to raise an objection by emphasizing the ongoing status of the prior application.

C. Order 2, Rule 2 does not apply in this context since raising an objection in an execution petition does not constitute a claim and does not constitute a lawsuit.

The period provided is 60 days from the date of sale. Similarly, while filing an application under Section 47 of the C.P.C., then also article 137 governs the period of limitation and the same is three years from the date of sale.

As per Article 127 of the Limitation Act, 60 days time is the period provided to set aside a sale in execution of a decree from the date of sale.

if there is a failure to issue a notice under Order XXI  Rule 66(2), the same is fatal and therefore, the same can be challenged under Section 47 of C.P.C. 

In the decision reported in AIR 1981 SC 693, S.A. Sundararajan v. A.P.V.   Rajendran, was referred, where it was held    as under:
Notwithstanding the wording of S.47 which is enough to cover all applications to set aside sales on the ground either of illegality or of irregularity, its scope has naturally
to be restricted so as to give due effect O.XXI, R.90 CPC. Thus, if the sale is sought to be set aside on the ground of material irregularity in publishing and conducting the sale
within the meaning of O.XXI, R.90, then S.47 cannot come into play at all and the sale could be set aside only invoking Order XXI, Rule 90. But if the sale is claimed to be void for certain illegality or voidable on ground of material irregularities not referred to in O.XXI, R.90, then S.47 has to be invoked an in such case, O.XXI, R.90 CPC cannot come into play at all.

In the decision reported in AIR 1998 Ker 201, Mohammed Khan And Anr. v. Graceamma Philip And Ors., a Single Bench of this Court while considering an application under Section 47 to declare a sale conducted after seven years, categorically held that it is a mischief under Order XXI Rule 90 of C.P.C .

For ,ore elucidation you may refer to a judgment by THE HIGH COURT OF KERALA AT ERNAKULAM in CRP NO. 156 OF 2020  dated 01.02.2022 in Jayaraman and others vs. Sambasivan.  

If you go through this judgment mostly you will be clarified 

According to Section 47, once a suit has been adjudicated and a decree has been passed, then all the questions related to the execution of the decree must be taken up and determined by the executing court.

2) 

IN THE HIGH COURT OF KERALA AT ERNAKULAM


 PRESENT:

 THE HONOURABLE MR.JUSTICE K.T.SANKARAN

 FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA, 1933

 CRP.No. 943 of 2007 ( )

 -----------------------

 OS.598/1996 of MUNSIFF COURT, PARAVUR

REVISION PETITIONER(S)/PETITIONERS/JUDGMENT DEBTORS:

---------------------------------------------------------------------

1. K.K.SUBRAMANIAN, S/O.KRISHNAN,

 AGED 65, KARINGAPPARAMBIL, PALATHURUTH MURI

 CHENDAMANGALAM VILLAGE, PARUR TALUK.

2. GOURI, W/O.K.K.SUBRAMANIAN,

 KARINGAPPARAMBIL, PALATHURUTH MURI

 CHENDAMANGALAM VILLAGE, PARUR TALUK.

3. RAJESH, S/O.SUBRAMANIAN,

 KARINGAPPARAMBIL, PALATHURUTH MURI

 CHENDAMANGALAM VILLAGE, PARUR TALUK.

 BY ADVS.SRI.BABU KARUKAPADATH

 SMT.M.A.VAHEEDA BABU

 SRI.JAGAN ABRAHAM M.GEORGE

RESPONDENT(S)/DECREE HOLDER:

----------------------------

 MADHAVAN, S/O.KRISHNAN,

 AGED 71, KARINGAPPARAMBIL, PALATHURUTH MURI

 CHENDAMANGALAM VILLAGE, PARUR TALUK.

 R,R1 BY SRI.S.SHYAM

 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON

 [deleted], THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

CRP 943/2007

 ORDER IN I.A.NO.2682 OF 2007 IN C.R.P.NO.943/2007

 DISMISSED

3.2.2012 SD/- K.T.SANKARAN, JUDGE

 K.T.SANKARAN, J.

 ------------------------------

 C.R.P.No.943 of 2007

 -------------------------------

 Dated this the 3rd day of February, 2012

An application under Section 47can be filed within the period of three years as provided under Article 137 of the Limitation Act.

13. The next question to be considered is from what point of time the period of limitation begins to run in the case of an application under Section 47 of the Code of Civil Procedure. Only the residuary Article, Article 137 of the Limitation Act applies to an application under Section 47 of the Code of Civil Procedure. Article 137 reads as follows :

--------------------------------------------------------------------------------------------

Description of application Period of Time from which period


 limitation begins to run

--------------------------------------------------------------------------------------------

137. Any other application Three years When the right to apply

for which no period of accrues.

limitation is provided

elsewhere in this division.

----------------------------------------------------------------------------------------------------

14. The time begins to run under Article 137 when the right to apply accrues. The right to apply to set aside a sale accrues from the date of sale. Even in the case of setting aside the sale, Article 127 provides for running of the period of limitation from the date of sale. Date of confirmation of sale or the date of making the application for delivery are irrelevant for the purpose of Article 127.When the prayer in the application under Section 47 is to declare that the sale is invalid or void, necessarily the right to apply accrues from the date of sale. In the present case, the sale was held on 18.12.2002 and it was confirmed on 20.2.2003. The application under Section 47 CPC was filed beyond the period of three years from this case. The contention put forward by the learned counsel for the petitioners that at every point of time when delivery is attempted, a fresh cause of action arises to enable the petitioners to apply under Section 47 of the Code of Civil Procedure cannot be accepted at all. If such contention is accepted, a judgment debtor would be entitled to protract the proceedings and there would be no finality to the execution proceedings, the execution, sale and delivery of the property. Therefore, I am not inclined to accept the contention put forward by the learned counsel for the petitioners that the application was filed within time. In the admitted factual situation, even assuming that an application under Section 47 was maintainable, it was not filed by the petitioners within time and the application was barred by limitation.

Even in this Civil Revision Petition, attempts were made by a learned Single Judge of this Court to settle the disputes between the parties. The case was adjourned on several dates to enable the parties to settle the case. Even the parties were called to the chambers of the learned Single Judge and an attempt was made to settle the case. All the attempts made to settle the case were futile. For the aforesaid reasons, the Civil Revision Petition is dismissed. However, there will be no order as to costs.

Yes, DH can file an application to dismiss the earlier application ex-parte on the ground of non-appearance of the advocate as well as JD. Under Order 21 Rule 22 CPC, if the defendant fails to appear or file a written statement within the time specified in the notice, the plaintiff may apply to the court to dismiss the suit ex-parte. The same principle applies to execution proceedings. In this case, the earlier application of JD was filed in 2021 and is still pending. JD has not appeared or filed any response to the application. Therefore, DH can file an application to dismiss the earlier application ex-parte.

Yes, you can raise an objection in the second application stating that the second application is barred under Order 2 Rule 2 CPC. Under Order 2 Rule 2 CPC, a party cannot institute a fresh suit or application for the same relief in the same court on the same cause of action after the dismissal of the earlier suit or application. In this case, the earlier application of JD was filed for the same relief of specific performance of the agreement for sale. Therefore, the second application of JD is barred under Order 2 Rule 2 CPC.

Yes, Order 2 Rule 2 CPC is applicable to execution proceedings. The Supreme Court has held that execution proceedings are not a continuation of the suit. However, the principle of res judicata still applies to execution proceedings.

Judgment of SC is binding .judgment depends upon facts of each case 

the issue would be whether attention of SC was drawn to provisions of Article 137 of limitation act 

A. use both the applications of the JD to point out inconsistencies and omissions and expose the JD by that

B. O2R2 can be applied only to a suit. 

whether or not limitation applies to a s.47 application, it is well settled that any application has to be filed within a 'reasonable time'. It cannot be that a party takes out an application, say after 10 years of the accrual of the cause of action. So you can always attack the said application on the principles of 'delay and laches' and point out the conduct of the JD in doing so to frustrate the DH's right under the decree

Dear Client,

I understand your concern regarding the apparent conflict between the Supreme Court's interpretation of Section 47 of the Code of Civil Procedure (CPC) and Article 137 of the Limitation Act.

Let's break down your questions: 

No Limitation for Section 47 as per Supreme Court:

In the case you mentioned, the Supreme Court held that there was no limitation prescribed for filing an application under Section 47 of the CPC. This means that, according to the Supreme Court's interpretation, there is no specific time limit within which an application under Section 47 must be filed. 

Article 137 of the Limitation Act:

Article 137 of the Limitation Act provides a general limitation period of three years for any application for which no period of limitation is provided elsewhere in the Act. It acts as a residual provision for cases not covered by specific limitation periods. 

Now, regarding your specific case: 

(1) Conflict between Section 47 and Article 137: While the Supreme Court has held that there is no specific limitation for Section 47 applications, Article 137 provides a general three-year limitation period for applications where no specific period is prescribed elsewhere. There doesn't seem to be an inherent conflict between the two. The absence of a specific limitation period in Section 47 could mean that Article 137 would apply as the general rule. 

(2) Application Filed by JD: In your case, the JD has filed an application under Section 47, arguing that the decree is not enforceable due to a settlement, which you believe is fraudulent, and it's also barred by limitation under Article 137. 

Here's how it typically works: If there's no specific limitation period prescribed for Section 47 applications, Article 137's three-year limitation may apply.However, the application's specific circumstances, such as fraudulent compromise and other legal arguments, would also be considered.To resolve the issue of limitation, the court will likely examine whether the application under Section 47 was filed within a reasonable time considering all the facts and circumstances. The court will assess the merits of the arguments presented in the application, including the claim of fraudulent compromise.

Yes it can be challenged on grounds of fraud and set aside

The limitation aspect as per the judgment you have referred herein above is totally on different facts which cannot be relied upon to your situation. 

If he is filing a petition under section 47 cpc based on the facts he is relying upon, nothing prevents you to challenge and object his gimmicks on the facts and evidences you rely upon.

You can discuss with your advocate and proceed as suggested instead of going on any misinterpreted provision  of law.