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Monday, October 28, 2013

Under Art.136 of the constitution - Or.21, rule 89 C.P.C. - Duty of court to determine the amount payable by Jdr after auction done - amount determined belatedly - Jdr is not responsible - giving an opportunity to the Jdr by High court to pay the determined amount to set aside the sale - is not illegal = - SUKUMAR DE …........PETITIONER(S) VERSUS BIMALA AUDDY & ORS. ….........RESPONDENT(S) - http://judis.nic.in/supremecourt/imgst.aspx?filename=40909

  Under Art.136 of the constitution - Or.21, rule 89 C.P.C. - Duty of court to determine the amount payable by Jdr after auction done - amount determined belatedly - Jdr is not responsible - giving an opportunity to the Jdr by High court  to pay the determined amount to set aside the sale - is not illegal =

Under Order 21 Rule 89 C.P.C., a chance is  given  to
the applicant to deposit the amount payable  including  5  percent  for  the
successful auction purchases and on deposit of  that  amount  the  Executing
Court will set aside the sale on 10.7.1990 itself.  
The  Respondent  No.  4/ judgment debtor has filed the application requesting the executing court  to intimate the amount to be deposited so that he could file application  under
Order 21 Rule 89 of CPC. 
Though this application was rejected, the order  of
the executing court was set aside by the High Court  allowing  the  revision
of the judgment debtor and directing the executing  court  to  intimate  the
same to the judgment debtor.
 In the first instance,  the  amount  calculated
was Rs. 1.14 lakhs which turned out to be wrong calculations, in as much  as
the High Court set aside the said order and on  re-calculation,  the  amount
payable was calculated at Rs. 42,055.87/-. 
The Executing Court had  directed
the judgment debtors to pay this amount which was to be  paid  by  11.11.92.

 No doubt, the amount calculated is found to be correct but  the  High  Court
chose to give one opportunity to the judgment debtor to deposit  the  amount
as upto that stage the controversy regarding actual  payment  had  not  been
settled.
8.    In these  circumstances,  exercise  of  discretion  in  the  aforesaid
manner cannot be found to be erroneous and contrary to  law  which  warrants
interference of this Court under Article 136 of the Constitution  of  India.
Further, we do not find any substantial question of law.
 It is  also  to  be
kept in mind that immediately after the impugned order  of  the  High  Court
the judgment debtors had deposited the amount. There should not be  made  to
lose the property, in the aforesaid circumstances.
We thus, dismiss the Special Leave Petition in limine.


                                                               REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
              SPECIAL LEAVE PETITION (CIVIL) NO. 25797 OF 2004

SUKUMAR DE                             …........PETITIONER(S)

                                   VERSUS

BIMALA AUDDY & ORS.                        ….........RESPONDENT(S)


                               J U D G M E N T

A.K. SIKRI, J.

This case has a chequered history. However, we do not find it  necessary  to
narrate all the events leading to the filing of the  present  Special  Leave
Petition, as the issue in the present Special Leave Petition,  which  arises
out of impugned judgment dated 8.6.2004 of the High Court of Calcutta, is  a
narrow one. In fact, as would be noticed hereafter, the  order  in  question
is discretionary in nature and the grievance of the petitioner  is  that  in
the facts and circumstances of the present case no  such  discretion  should
have been exercised by the High Court thereby granting one more  opportunity
to the respondents to pay the decretal amount with interest, the  effect  of
which  was  to  nullify  the  auction  of  the  property  in  the  execution
proceedings which was bought by the petitioners herein.
The facts which needs to be traversed for  this  purpose  are  recapitulated
below:
            Way back in the year 1965, a money  suit  No.  20  of  1965  was
instituted by one Smt. Bimala Bala Sen, (since deceased) (hereinafter to  be
referred as the decree holder) for a sum of Rs.  6,100/-,  being  refund  of
earnest  money.  An  ex  parte  decree  was  passed  on  23.12.1967  against
Respondent Nos. 1 to 4, 6 and 7 herein (hereinafter to be  referred  as  the
judgment debtors). This decree was in the sum of Rs.  6,600/-  (Rs.  6,100/-
money  claimed  +  Rs.  500/-  as  cost).  The  judgment  debtors  filed  an
application for setting aside the ex parte decree which  was  dismissed  and
appeals thereagainst were also dismissed. This decree  thus,  became  final.
Execution Case was filed on 24.9.1970 by the decree holder.
In this execution proceedings, some objections were filed  by  the  judgment
debtors. The Executing Court even gave opportunity to the  judgment  debtors
to deposit decretal amount. However, ultimately on  7.7.1990,  the  property
namely 11 Cottahs of land with a two storied pukka building situated  at  46
and 48, R.K. Chatterjee Road, Kasba, Calcutta was put  to  auction  and  the
petitioners were the highest bidders therein with the bid of Rs. 1.5  lakhs.
On 9.7.1990, auction sale was confirmed. The petitioner  deposited  poundage
fee alongwith challan of one-fourth of the bid amount i.e. Rs. 37,500/-.  On
the very next day, one of the  judgment  debtors  namely  Respondent  No.  4
herein filed an application in the execution case for intimation as  to  how
the decreetal amount be deposited. This petition was  however,  rejected  by
the Executing Court on 8.8.1990. Against this order, Revision  Petition  was
filed before the  High  Court  under  Section  115  of  the  Code  of  Civil
Procedure. On 9.11.1990,  it  was  registered  as  C.O.  3515/1990.  In  the
meantime, on 12.11.1990, the petitioner deposited entire purchase money  and
sale certificate was issued in their favour by the Executing Court.
4.    The revision petition of the judgment  debtors  (C.O.  3515/1990)  was
finally heard by the High Court and allowed on 10.4.1992. The High Court  in
the said order noted the submission of the judgment debtors  to  the  effect
that at the time of auction of the property value thereof was more than  Rs.
8,00,000/- which was sold for a partly amount of Rs. 1.5 lakhs. It was  also
pleaded that as the judgment debtors could not  obtain  particulars  of  the
auction sale through their lawyers,  they  could  not  file  an  application
under Order 21 Rule 89 of C.P.C. for depositing the requisite amount in  the
execution case and get the sale set aside. On coming to know of the  auction
sale, they moved the application for ascertaining the dues for  the  purpose
of filing application  under  Order  21  Rule  89  of  the  C.P.C.  But  the
Executing Court instead of giving information put the said application to  a
future date i.e. on 8.8.1990 and thereafter dismissed  the  same.  The  High
Court noted the provisions of Rule 89 of Order 21  of  the  C.P.C.,  as  per
which a person interested in setting aside the sale can deposit in  Court  a
sum equal to 5 percent  of  the  auction  purchaser  and  also  for  payment
through the decree holder, the  amount  specified  in  the  proclamation  of
sale.  On this basis, the High Court concluded that it  was  necessary  that
the amount should be determined before the deposit is  made.  Though  it  is
the responsibility of the applicant  to  see  that  the  correct  amount  is
deposited, however, some sort of ministerial work has got to be done  before
the  determination  of  the  correctness  of  the  amount.  Therefore,   the
Executing Court was in error by not disclosing the amount which  was  to  be
deposited and the judgment debtors should not suffer because of the  mistake
of the Court. On these grounds, the order of the  Executing  Court  was  set
aside with direction that the Court below  should  proceed  from  the  stage
when the application for determination of the amount  to  be  deposited  was
filed on 10.7.1990. Direction was  given  to  the  Court  to  determine  the
amount  to  be  deposited  by  the  applicant/  judgment  debtor  and   then
permitting him to deposit the amount as per order passed, according to law.
5.    After receiving the order, aforesaid order  of  the  High  Court,  the
Executing Court gave the direction to the Shristadar to submit a  report  of
the calculation of the amount. He, accordingly gave his report stating  that
the judgment debtors had to pay a sum  of  Rs.  1.14  lakhs.  Direction  was
given to the JD's to deposit the amount. This order was  challenged  by  the
judgment debtors  questioning  the  calculations  made  and  submitted  that
decretal amount of Rs. 6,600/- could not become Rs. 1.14  lakhs  even  after
adding interest etc. The High Court vide orders dated  22.9.1992  set  aside
this order of the Execution Court as well on the  ground  that  calculations
were wrong. Directions were  given  to  the  Executing  Court  to  make  the
calculation afresh.
6.    Fresh calculations were made by Shristadar on 24.9.1992  significantly
reducing the  amount  due  under  decree  to  Rs.  42055.87/-  from  earlier
calculation of Rs. 1.14 lakhs. On that very day, the  trial  court  directed
the judgment debtors to deposit the said amount  by  “November  1992”.  This
order was also challenged by the judgment debtors by  approaching  the  High
Court by means of a revision  petition  questioning  the  calculations.  The
High Court even granted stay of the impugned order initially. This  revision
petition kept pending for quite some time and is ultimately decided  by  the
impugned order only on 8.6.2004. Before the High Court,  the  petitioner  or
the decree holder did not appear despite  services  of  notice.  High  Court
noted that the calculations are correctly arrived at. At the  same  time  it
deemed it proper to give one opportunity to the judgment debtors to  deposit
the amount and the operative portion of the said order reads as under:
“Accordingly we dispose of  the  Revisional  application  by  modifying  the
order passed by the learned executing  Court  on  24.9.1992  in  the  manner
indicated  herein  below.  The  judgment  debtor  shall  deposit  with   the
executing court a sum of Rs. 42,055,87 as calculated by the  office  of  the
executing Court, within one month from date. On deposit  of  the  said  sum,
the sale shall stand set aside.  The  learned  executing  court  shall  take
steps to disburse to the purchaser and the decree  holder  their  respective
dues as contemplated under clauses (a) of sub rule (1) of rule 89  of  Order
21 of the Code. In addition to the above, the  executing  court  shall  make
over to the judgment debtors the stamps purchased by the  auction  purchaser
for the purpose of the sale certificate so that the  amount  of  the  stamps
may be recorded by the judgment debtor in accordance with the provisions  of
section 54 of the Indian Stamp Act, 1899. The learned executing court  shall
pass an order of the basis whereof the judgment debtor would be entitled  to
receive back the amount of  the  stamp  duty  although  the  same  had  been
purchased in the name of the auction  purchaser  who  will  be  entitled  to
receive back  the  cash  value  thereof.  The  learned  executing  Court  is
directed to take steps to dispose of  the  matter  expeditiously  since  the
same has been pending for a long time.”

7.    In sum and substance the position which emerges on the auction of  the
property in question can be summarised as below:
The property was put up on  auction  on  July,  1970  and  
the  bid  of  the petitioner in a sum of Rs.1.5 lakhs was the highest. 
The  auction  sale  was confirmed on 9.7.1990. 
Under Order 21 Rule 89 C.P.C., a chance is  given  to
the applicant to deposit the amount payable  including  5  percent  for  the
successful auction purchases and on deposit of  that  amount  the  Executing
Court will set aside the sale on 10.7.1990 itself.  
The  Respondent  No.  4/ judgment debtor has filed the application requesting the executing court  to intimate the amount to be deposited so that he could file application  under
Order 21 Rule 89 of CPC. 
Though this application was rejected, the order  of
the executing court was set aside by the High Court  allowing  the  revision
of the judgment debtor and directing the executing  court  to  intimate  the
same to the judgment debtor.
 In the first instance,  the  amount  calculated
was Rs. 1.14 lakhs which turned out to be wrong calculations, in as much  as
the High Court set aside the said order and on  re-calculation,  the  amount
payable was calculated at Rs. 42,055.87/-. 
The Executing Court had  directed
the judgment debtors to pay this amount which was to be  paid  by  11.11.92.

However, before that the judgment debtor filed  another  revision  petition.
This revision petition is decided by the impugned order passed on  8.6.2004.
No doubt, the amount calculated is found to be correct but  the  High  Court
chose to give one opportunity to the judgment debtor to deposit  the  amount
as upto that stage the controversy regarding actual  payment  had  not  been
settled.
8.    In these  circumstances,  exercise  of  discretion  in  the  aforesaid
manner cannot be found to be erroneous and contrary to  law  which  warrants
interference of this Court under Article 136 of the Constitution  of  India.
Further, we do not find any substantial question of law.
 It is  also  to  be
kept in mind that immediately after the impugned order  of  the  High  Court
the judgment debtors had deposited the amount. There should not be  made  to
lose the property, in the aforesaid circumstances.
We thus, dismiss the Special Leave Petition in limine.

                                    …............…........................J.
                                                        [K.S. RADHAKRISHNAN]




                                  ….......................................J.
                                                                [A.K. SIKRI]



New Delhi
October 28, 2013.

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