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Monday, September 23, 2013

Execution Petition = The High Court, by an interim order dated 11th May, 1970 gave an opportunity to the appellant/judgment debtor to pay the entire decretal amount within two months from the date of passing of the interim order, failing which it was directed that the said order would stand automatically vacated. 10. The entire decretal amount was admittedly not paid by the judgment debtor and therefore, finally by an order dated 2nd February, 2006, the Execution Second Appeal No. 742 of 1970 has been dismissed by the High Court and being aggrieved by the said order, the judgment debtor has filed this appeal.= It is really deplorable that the heirs of the plaintiff who had filed the original suit somewhere in 1955 are still unable to get the decretal amount. In our opinion, sufficient opportunities had been provided to the judgment debtor to pay the decretal amount but every time the appellant failed to pay the decretal amount within the period prescribed, this matter should have an end at this stage and therefore, we dismiss the appeal and the stay granted by this Court also stands vacated.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40819

                                                              NON REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 8398  OF 2013
                  (Arising out of SLP(C) No. 6094  of 2007)


Manju Swarup (D) through Lrs.                      .....Appellants



                                Versus

Bhupenshwar Prasad (D) Through Lrs. & Ors.   …..Respondents



                              1 J U D G M E N T





1 ANIL R. DAVE, J.


   1. Leave granted.
   2. This is one of the cases which shows how miserable  a  decree  holder
      becomes in the execution proceedings.
This is a Second Appeal in the
      execution proceedings filed by the judgment debtor whose property was
      ordered to be sold in the execution proceedings.
In pursuance  of  a
      suit, which had been filed in 1955, the final decree was  passed  and
      the property of the appellant had been  attached  on  21st  December,
      1962.  
The execution proceedings had been continuing since then.  The
      facts, in a nutshell, are that
 the Execution Case No. 29 of 1962  was
      filed for recovery of  the  decretal  amount  by  the  decree-holder.
      
Auction notice was published on  16th  April,  1964.   
The  appellant
      herein,  the judgment debtor had filed  an  application  under  Order
      XXI, Rule 83 of the Code of Civil Procedure,  1908  (for  short  ‘the
      CPC’) for postponement of the  sale,  
as  it  was  possible  for  the
      judgment debtor to raise the decretal amount and pay the same to  the
      decree-holder.
   3. Ultimately, on 8th October,  1964,  the  parties  had  come  to  some
      understanding, which had been recorded by the Court as under:


        “The parties agree that time of four months be given to  JD  should
        he deposit Rs.2000/- per month & deposits the entire  amount  in  4
        (four) months.  (…illegible) under Order 21 Rule 83 CPC  be  given.
        If amount is not deposited in four months then the JD  agrees  that
        property be sold without proclamation.”


   4. The amount was not  deposited  by  the  judgment  debtor  within  the
      specified time and ultimately the  executing  court  had  passed  the
      following order on 3rd August, 1965:
        “In case the JD has committed default  in  not  making  payment  in
        time, the execution has to proceed unless the  decree  holder  (DH)
        condones the delay.  Let DH disclose by 19.08.1965 if he  wants  to
        proceed or condone the delay of JD.”


   5. The amount was still not paid by the judgment debtor and the judgment
      debtor filed an application for extension of time  and  on  the  said
      application, the court passed the following  order  on  28th  August,
      1965:
        “I have heard learned counsel  and  gone  through  the  proceeding.
        There are no grounds why the JD should be allowed any further time.
        47C2 is rejected.
        Issue sale proclamation 28.10.1964.  Deposit by 01.11.1965.”


   6. An application made for stay of the auction proceedings, filed by the
      judgment debtor, had been rejected by the order dated  23rd  October,
      1965 and ultimately the  attached  property  was  auctioned  on  29th
      October, 1965.  At the time of the auction, 35 bidders  were  present
      and the property was sold for Rs.13,700/-.
   7.  Thereafter,  on  10th  May,  1969,  the  judgment  debtor  filed  an
      application under Order  XXI,  Rule  90  of  the  CPC  alleging  that
      irregularities were committed in the conduct of the auction  and  the
      attached  property  had  been  sold  at  a  lower  price.   The  said
      application was allowed by the executing court on the ground that the
      sale price was inadequate.
   8. Being aggrieved by the aforestated order dated  10th  May,  1969,  an
      appeal had been filed, which had been allowed by the order dated  5th
      February, 1970.
   9. The validity of the aforestated order dated 5th  February,  1970  was
      challenged by the judgment  debtor  by  filing  an  Execution  Second
      Appeal No. 742 of 1970 before the High Court of Allahabad.  The  High
      Court, by an interim order dated 11th May, 1970 gave  an  opportunity
      to the appellant/judgment debtor to pay the  entire  decretal  amount
      within two months from the date of  passing  of  the  interim  order,
      failing which it  was  directed  that  the  said  order  would  stand
      automatically vacated.
  10. The entire decretal amount was admittedly not paid  by  the  judgment
      debtor and therefore, finally by an order dated 2nd  February,  2006,
      the Execution Second Appeal No. 742 of 1970 has been dismissed by the
      High Court and being aggrieved by the said order, the judgment debtor
      has filed this appeal.
  11.  The learned counsel appearing for the judgment debtor- the appellant
      had mainly submitted that the decretal amount had been  deposited  by
      the appellant in the court after the period  specified  by  the  High
      Court was over and therefore, the sale should be  cancelled  and  the
      present appeal should be allowed so that the appellant  can  get  his
      property back.
  12. On the other hand, the learned counsel appearing for the  respondents
      had submitted that the stay had been granted by the High Court by  an
      interim order  dated  11th  May,  1970  on  the  condition  that  the
      appellant would pay the decretal amount within  a  specified  period,
      but that had not been paid or deposited within the time prescribed by
      the High Court and therefore, the Execution Second  Appeal  has  been
      dismissed by the  High  Court.  
In  the  circumstances,  no  further
      opportunity be given to the appellant.
  13. We have heard the learned counsel and have also considered the  facts
      of the case.  It is really deplorable that the heirs of the plaintiff
      who had filed the original suit somewhere in 1955 are still unable to
      get the decretal amount.  In our  opinion,  sufficient  opportunities
      had been provided to the judgment debtor to pay the  decretal  amount
      but every time the appellant failed to pay the decretal amount within
      the period prescribed, this matter should have an end at  this  stage
      and therefore, we dismiss the appeal and the  stay  granted  by  this
      Court also stands vacated.
  14. The appeal stands dismissed with no order as to costs.


                             ……...........................................J.
                                                       (ANIL R. DAVE)


                             ……...........................................J.
                                                          (A.K. SIKRI)
New Delhi
September 20, 2013
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