REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4557 OF 2012
DIPALI BISWAS & ORS. ...APPELLANT(S)
VERSUS
NIRMALENDU MUKHERJEE & ORS. …RESPONDENT(S)
J U D G M E N T
V. Ramasubramanian, J.
1. Challenging the order of the High Court confirming the order
of the Executing Court dismissing their application under Section
47 of the Code of Civil Procedure, 1908 (hereinafter referred to as
the ‘Code’), the legal representatives of the judgmentdebtor have
come up with the above appeal. Incidentally, this litigation is
exactly half a century old (it started with a suit filed in 1971) and
this appeal arises out of the fifth round of litigation at the stage of
execution of a simple money decree and we wish that it is the knock
out round.
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2. We have heard Mr. Rauf Rahim, learned counsel for the
appellants, and Mr. Raja Chatterjee, learned counsel appearing for
the respondent nos.17/auction purchasers.
3. One Ms. Rama Rani Devi, filed a simple suit for recovery of
money in Money Suit No.16 of 1971 on the file of the District
Munsif Court, Bongaon, District 24 Parganas, West Bengal, against
one Sasadhar Biswas, for recovery of a sum of Rs.3000/. The suit
was decreed ex parte on 25.07.1974, directing the defendant to pay
the decretal amount in six equal instalments with a default clause.
4. Since the decree was not honoured, the decree holder filed an
execution petition in Execution Case No.2 of 1975, praying for the
attachment and sale of 17 decimal of land (approximately about
7450 Sq.ft.) in Plot No.26/159 under Khatian No.2555 of Mouza
Bongaon. It appears that a sale proclamation was issued by the
executing court on 16.07.1975 after which Sasadhar Biswas, the
Judgmentdebtor filed an application in Miscellaneous Case No.151
of 1975 assailing the sale proclamation issued by the executing
court, on the ground of material irregularity and fraud. But the
same was dismissed on 03.09.1975.
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5. An auction sale was held on 30.05.1979, in which two
brothers by name, Sachindra Nath Mukherjee and Dulal Kanti
Mukherjee became the highest bidders, they having offered a sum
of Rs.5500/, as the highest bid amount. The highest bidders also
deposited the money into court.
First round
6. Mr. Sasadhar Biswas, the judgmentdebtor then filed an
application on 27.06.1979 under Order XXI, Rule 90 read with
Section 152 of the Code praying for setting aside the auction sale on
the ground of irregularities in the sale proclamation. During the
pendency of this petition in Miscellaneous Case No.47 of 1979, the
judgmentdebtor Sasadhar Biswas entered into a compromise on
19.07.1980, not with the decree holder but with the auction
purchasers. The memo of compromise reads as follows:
“The petitioner and the auction purchaser Opp. party do
settle the suit mutually in the following manner.
1) If the petitioner debtor pays the entire money due to the
auction purchaser opposite part in cash within 15th December
or if he deposits it in their credit in the court and the auction
shall be revoked and the original execution case shall be
disposed on full satisfaction.
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2) Otherwise that is if the petitioner debtor does not pay the
entire money due to the auction purchaser opposite party in
cash within 15th December on deposits that amount in court
within that date then the said auction shall remain effective
and this present suit shall be dismissed with costs.
Hence it is prayed that according to the contents of this
solenama and for compliance with the conditions of the
solenama the final date of this suit may be kept on 16.12.80
on the expiry of the 15th December.”
7. It is relevant to point out that the amount of money deposited
by the auction purchasers into court was Rs.5500/, but the decree
debt was around Rs.3360/. Though the compromise memo entered
into by the judgmentdebtor with the auction purchasers did not
refer to the decree debt, but repeatedly mentioned the words,
“entire money due to the auction purchasers”, the judgmentdebtor
admittedly deposited on 15.12.1980, only a sum of Rs.3700/,
purportedly on the basis of the calculation provided by the court
officer in terms of Order XXI, Rule 89 of the Code.
8. Since the deadline for payment of the entire money due to the
auction purchasers expired on 15.12.1980 and also since the
judgmentdebtor deposited only a sum of Rs.3700/, as against the
amount of Rs.5500/ deposited by the auction purchasers, the
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executing court dismissed the application under Order XXI, Rule 90
in Miscellaneous Case No.47 of 1979.
9. But within four days, the executing court again passed an
order on 20.12.1980 recalling the order dated 16.12.1980 and
recording full satisfaction in the execution. Shocked at this order,
the auction purchasers filed an application on 22.12.1980 for
recalling the order dated 20.12.1980, passed purportedly behind
their back. This application was dismissed by the executing court
on 12.09.1981. Challenging the said order dated 12.09.1981,
passed by the executing court, the auction purchasers filed a
revision in C.R.No.3577 of 1981 on the file of the High Court. The
High Court allowed the revision by an order dated 21.06.1983 and
remanded the matter back to the executing court, for rehearing the
application of the auction purchasers for recall of the order dated
20.12.1980.
10. The executing court passed a fresh order dated 11.07.1987
rejecting the application of the auction purchasers on merits, but
this order was set aside by the High Court in a revision in
C.O.No.2487 of 1987, by an order dated 20.12.1990. By this order
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the High Court held that the judgmentdebtor failed to honour the
commitment made in the compromise memo to deposit the entire
amount due to the auction purchasers and that therefore the
auction sale should be confirmed in favour of the auction
purchasers. It may be relevant to extract Clause No.4 of the
operative portion of the order of the High Court in C.O. No.2487 of
1987 dated 20.12.1990. It reads as follows:
“xxx xxx xxx xxx
4. None of the parties shall have any claim whatsoever as
against the applicant in respect of the purchased property
which shall be deemed to be his absolute property on and
from the expiry of 15th December, 1980.”
11. Thereafter, a mention was made before the learned judge, on
behalf of the counsel for the judgmentdebtor seeking recall of the
order in C.O.No.2487 of 1987 on the ground that the counsel was
not present at the time of disposal of the revision petition.
Therefore, the leaned Judge again heard the matter and passed a
detailed order dated 08.08.1991, reiterating his earlier order. A
special leave petition filed against the order dated 08.08.1991, in
SLP(C)No.18092 of 1991 was dismissed by this Court on
24.02.1992. The judgmentdebtor moved a petition for review before
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this Court but the same was also dismissed on 12.08.1992. Thus,
the 1st round of litigation kicked off with an application under Order
XXI, Rule 90, in the year 1979, came to an end in 1992.
Second Round
12. The judgmentdebtor then started the 2nd round by filing a suit
in suit No.249 of 1992 on the file of the District Munsif, Bongaon,
for a declaration that the auction sale is void but the said suit was
dismissed as abated, on 02.12.1992.
Third Round
13. In the meantime, the auction purchasers filed petitions for the
issue of sale certificate and the judgmentdebtor filed a petition
under Order XXI, Rule 29 for stay of execution proceedings. But the
application of the judgmentdebtor was dismissed and the
applications of the auction purchasers were allowed by the
executing court by an order dated 31.01.1994. A direction was
given for the issue of a sale certificate to the auction purchasers in
terms of Order XXI, Rule 94. Accordingly, a sale certificate was
issued on 08.02.1994. The sale certificate was also duly registered.
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14. Challenging the order dated 31.01.1994 passed by the
executing court directing the issue of sale certificate, the judgmentdebtor filed a revision in C.O.No.1232 of 1994 on the file of the High
Court. Though the High Court entertained the revision and initially
granted a stay of further proceedings in the execution, the High
Court eventually dismissed the revision petition by an order dated
05.09.2001 holding that the earlier order in C.O.No.2487 of 1987
dated 08.08.1991 had already clinched the issue. With this order,
the third round came to an end.
Fourth Round
15. The 4th round began with an application by the auction
purchasers seeking delivery of possession. This application was
allowed by the executing court on 15.03.2002, directing delivery to
be effected by 16.04.2002. Since the judgmentdebtor had, in the
meantime, constructed a building on the land sold in execution of
the decree, the executing court directed the building so constructed
illegally, to be demolished.
16. The order of the executing court for delivery of possession was
challenged by the appellants herein (the legal representatives of the
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judgmentdebtor) in a Civil Petition No.106 of 2002 before the
Additional District Judge, Barasat. The same was dismissed on
26.02.2003. This order was challenged before the High Court in
C.O.No.1276 of 2003, but the same was dismissed by the High
Court by an order dated 11.02.2005 pointing out that the issue has
already been clinched by the previous orders. The special leave
petition SLP(C) No.12925 of 2005 filed against the said order, was
dismissed by this Court on 18.07.2005. The petition seeking review
of the said order was also dismissed by this Court on 10.01.2006.
Thus, the fourth round of litigation came to a close.
Fifth Round (present round)
17. Not to be put off by repeated failures, the appellants herein,
like the tireless Vikramaditya, (who made repeated attempts to
capture ‘Betal’) started the present round (hopefully the final
round), by moving a petition in Miscellaneous Case No.15 of 2006
before the executing court under Section 47 of the Code, on the
ground that the mandate of Order XXI Rule 64 was not followed in
the auction and that therefore a jurisdictional error has crept in
and that the same could be corrected at any point of time and at
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any stage of the proceeding. This petition filed on 10.02.2006 was
dismissed by the executing court by an order dated 20.01.2007.
18. Challenging the said order dismissing their application under
Section 47, the appellants filed a revision in C.O. No.1115 of 2007
on the file of the High Court. This revision was dismissed by the
High Court by an order dated 28.03.2008, on the ground that the
issue, never having been raised earlier, cannot be allowed to be
raised at this distance of time. It is against the said order of the
High Court dated 28.03.2008, in C.O.No.1115 of 2007 that the legal
representatives of the judgmentdebtor have come up with the
above appeal.
Contentions and our analysis
19. The only mantra, by the recitation of which, the appellants
hope to succeed in this halfacentury old litigation, is Order XXI,
Rule 64 of the Code. This provision enables an executing court to
order “that any property attached by it and liable to sale or such
portion thereof as may seem necessary to satisfy the decree, shall be
sold and that the proceeds of such sale or a sufficient portion thereof
10
shall be paid to the party entitled under the decree to receive the
same”.
20. It is the contention of the learned counsel for the appellants
that Order XXI, Rule 64 casts not a discretion, but an obligation, to
sell only such portion of the property as may be sufficient to satisfy
the decree. In support of this proposition, the learned counsel for
the appellants cited a few decisions, which we shall now deal with.
In Takkaseela Pedda Subba Reddi vs. Pujari Padmavathamma
& Ors1
, this Court held that the, “executing court derives
jurisdiction to sell properties attached, only to the point at which the
decree is fully satisfied”, and that the words, “necessary to satisfy
the decree”, clearly indicate that no sale can be allowed beyond the
decretal amount mentioned in the sale proclamation. This Court
went further to hold that the issue flowing out of Order XXI, Rule
64 goes to the very root of the jurisdiction of the executing court
and that therefore the fact that an objection in this regard was not
raised before the executing court is not sufficient to put him out of
court.
1 (1977) 3 SCC 337
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21. But the aforesaid decision arose out of a case where the
decretal amount for which the properties were to be sold was
mentioned in the warrant of sale and sale proclamation as
Rs.16,715/. The lands in two villages namely Devanoor and
Gudipadu were brought to sale. The sale of lands in one village
alone fetched Rs.16,880/. Yet the executing court proceeded to sell
the lands in Gudipadu also. It is in that context that this Court held
as aforesaid.
22. The decision in Ambati Narasayya vs M. Subha Rao &
Anr2
, while following T.P. Subba Reddi (supra), went a step further
and held that if the property is large and the decree to be satisfied
is small, the court must bring only such portion of the property, the
proceeds of which would be sufficient to satisfy the decree debt and
that it is immaterial whether the property is one or several.
23. But the decision in Ambati Narasayya (supra) also arose out
of a particular context. The land that was sold in Ambati
Narasayya (supra) was of the extent of 10 acres and it was sold for
Rs.17,000/ for the satisfaction of a claim of Rs.2400/. The land of
2 (1989) Supp. 2 SCC 693
12
the extent of 10 acres is certainly large enough and is capable of
division. But in the case on hand, the extent of land is only 17
decimals, working out to (7450 Sq.ft.).
24. It must be pointed out at this stage that under Order XXI,
Rule 66 (1) the executing court should cause proclamation of the
intended sale to be drawn up in the language of the court. Under
sub rule (2) of Rule 66 of Order XXI, such proclamation should be
drawn up after notice to the decree holder and the judgmentdebtor.
Order XXI, Rule 66 reads as follows:
66. Proclamation of sales by public auction. (1) Where any
property is ordered to be sold by public auction in execution of
a decree, the Court shall cause a proclamation of the intended
sale to be made in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the
decreeholder and the judgmentdebtor and shall state the
time and place of sale, and specify as fairly and accurately as
possible—
(a) the property to be sold, or, where a part of the property
would be sufficient to satisfy the decree, such part;
(b) the revenue assessed upon the estate or part of the estate,
where the property to be sold is an interest in an estate or in
part of an estate paying revenue to the Government;
(c) any incumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered;
and
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(e) every other thing which the Court considers material for a
purchaser to know in order to judge of the nature and value of
the property:
Provided that where notice of the date for settling the
terms of the proclamation has been given to the judgmentdebtor by means of an order under rule 54, it shall not be
necessary to give notice under this rule to the judgmentdebtor unless the Court otherwise directs:
Provided further that nothing in this rule shall be
construed as requiring the Court to enter in the proclamation
of sale its own estimate of the value of the property, but the
proclamation shall include the estimate, if any, given, by
either or both of the parties.
(3) Every application for an order for sale under this rule shall
be accompanied by a statement signed and verified in the
manner hereinbefore prescribed for the signing and
verification of pleadings and containing, so far as they are
known to or can be ascertained by the person making the
verification, the matters required by subrule (2) to be
specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified
in the proclamation, the Court may summon any person
whom it thinks necessary to summon and may examine him
in respect to any such matters and require him to produce
any document in his possession or power relating thereto.
25. It is important to note here that two significant changes were
made to Order XXI, Rule 66 by Act 104 of 1976 w.e.f. 01.02.1977.
Both these changes were made to sub rule (2) of Rule 66. One of the
changes was the insertion of the words “or where a part of the
property would be sufficient to satisfy the decree, such part”
in clause (a) of sub rule (2). The second change was the insertion of
two provisos under sub rule (2).
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26. As an aside, it may be noted that the second proviso to sub
rule (2) inserted by Central Act 104 of 1976, was redundant in so
far as Calcutta is concerned, since Calcutta already had a similar
proviso inserted through a local amendment.
27. The first proviso under sub rule (2) of Rule 66 of Order XXI
gives a discretion to the court not to give notice under Order XXI,
Rule 66 to the judgmentdebtor, if a notice for settling the terms of
the proclamation had been given to the judgmentdebtor by means
of an order under Rule 54.
28. Rule 54 of Order XXI prescribes the method of attachment of
immovable property. Sub rule (1A) of Rule 54, also inserted by Act
104 of 1976, mandates that the prohibitory order under sub rule(1)
shall require the judgmentdebtor to attend court on a specified
date to take notice of the date to be fixed for settling the terms of
the proclamation of sale. This is why the first proviso to sub rule (2)
of Rule 66 gives a discretion to the court to dispense with a second
notice under Order XXI, Rule 66(2).
29. Keeping in mind the above statutory prescriptions, if we come
to the facts of the case, it is seen that the appellants have filed as
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additional document in Annexure A3, the copy of the extract of
relevant orders passed in Money Execution Case No.2 of 1975 by
the District Munsif Court, Bongaon. This document reveals that on
10.01.1975, the executing court ordered the issue of notice of
attachment under Order XXI, Rule 54 of the Code. It was only
thereafter that the court directed on 16.07.1975, the issue of sale
proclamation under Order XXI, Rule 66.
30. Thereafter, the judgmentdebtor filed a petition under Section
47 of the Code on 02.09.1975 (this was the first petition under
Section 47, while the appeal on hand arises out of the second petition
under Section 47).
31. The executing court, at the instance of the judgmentdebtor
also granted stay of further proceedings on 26.09.1975. But it is not
clear from Annexure A3 of the additional documents filed by the
appellants, as to when the said petition under Section 47 was
disposed of. However it is clear from the order passed on
22.04.1978 that the decree holder was directed to take further
steps.
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32. Even after directing the publication of the sale proclamation in
the newspaper, the executing court was more than fair to the
judgmentdebtor, as could be seen from the order passed on
16.03.1979. On the said date the executing court found that in the
newspaper publication, the case number was wrongly mentioned.
Therefore, the court directed the issue of fresh sale proclamation
and fresh publication. It is only thereafter that the judgmentdebtor
moved a petition on 30.05.1979 for postponement of the auction. It
was rejected and the court proceeded with the auction. The decree
holder himself participated in the auction after getting permission
from the court. However, it is only the third parties who succeeded
in getting the sale confirmed.
33. The above sequence of events would show that the judgmentdebtor had sufficient opportunity to object to the inclusion of the
entire property when an order was passed under Order XXI, Rule
54. Subsequently he had an opportunity to object to the inclusion
of the whole of the property, by taking advantage of the amended
clause (a) of sub rule (2) of Rule 66 of Order XXI, which speaks
about a part of the property that would be sufficient to satisfy the
17
decree. But the judgmentdebtor despite filing a petition under
Section 47 on 02.09.1975, did not point out how the property being
a vacant land of an extent of 17 decimals could have been divided.
It must be pointed out at the cost of repetition that the notice of
attachment under Order XXI, Rule 54 was ordered on 10.01.1975
and the sale proclamation under Order XXI, Rule 66 was directed to
be issued on 16.07.1975. It is only thereafter that the first petition
under Section 47 was filed on 02.09.1975. Therefore, the appellants
cannot compare themselves to the judgmentdebtors in T.P. Subba
Reddi or Ambati Narasayya (supra).
34. As we have pointed out elsewhere, the objection relating to
Order XXI, Rule 64 has been raised by the appellants for the first
time in the 5th round of litigation in execution. In the 1st round, the
appellants exhausted the gunpowder available under Order XXI,
Rule 90, by taking recourse to a compromise with the auction
purchasers, after alleging material irregularity in the conduct of the
auction. The 1st round which commenced in 1979 came to an end in
1992 with the dismissal of SLP(C) No.18092 of 1991. In the order of
the High Court dated 20.12.1990 that was under challenge in the
18
said SLP, the High Court made it clear that none of the parties shall
have any claim whatsoever as against the auction purchaser in
respect of the purchased property (we have extracted this in Para
10 above).
35. The 2nd round was kickstarted with a suit in Suit No.249 of
1992 for a declaration that the auction sale was void. This is
despite the express bar of a separate suit, under Section 47(1) of
the Code. But the 2nd round got aborted with the dismissal of the
suit due to abatement.
36. The 3rd round started with objections to the issue of sale
certificate and it came to an end in the year 2001. The 4th round
commenced when the auction purchasers moved the executing
court for delivery of possession. Delivery was ordered by the
executing court on 15.03.2002. This round came to a close with the
dismissal of a SLP in the year 2005 and a review petition in the year
2006, arising out of the dismissal of a revision petition challenging
the order of the executing court for delivery of possession. It is only
thereafter that the 5th round of litigation was started by the
appellants by filing a petition under Section 47 and raising the
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bogey of “jurisdictional error” on account of noncompliance with the
mandate of Order XXI, Rule 64. In other words, the appellants have
now exhausted almost all provisions available to a judgmentdebtor
to stall execution and the case on hand is fit to be included in the
syllabus of a law school as a study material for students to get
equipped with the various provisions of the Code relating to
execution.
Conclusion
37. The appellants cannot be allowed to raise the issue relating to
the breach of Order XXI, Rule 64 for the following reasons:
(i) A judgmentdebtor cannot be allowed to raise objections as to
the method of execution in instalments. After having failed to raise
the issue in four earlier rounds of litigation, the appellants cannot
be permitted to raise it now;
(ii) As we have pointed out elsewhere, the original judgmentdebtor himself filed a petition under Section 47, way back on
02.09.1975. What is on hand is a second petition under Section 47
and, hence, it is barred by res judicata. It must be pointed out at
this stage that before Act 104 of 1976 came into force, there was
one view that the provisions of Section 11 of the Code had no
application to execution proceedings. But under Act 104 of 1976
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Explanation VII was inserted under Section 11 and it says that the
provisions of this Section shall apply to a proceeding for the
execution of a decree and reference in this Section to any suit, issue
or former suit shall be construed as references to a proceeding for
the execution of the decree, question arising in such proceeding and
a former proceeding for the execution of that decree;
(iii) Even in the 5th round, the appellants have not pointed out the
lay of the property, its dimensions on all sides and the possibility of
dividing the same into two or more pieces, with a view to sell one or
more of those pieces for the realisation of the decree debt;
(iv) The observations in paragraph 4 of the order of the High Court
dated 20.12.1990 in C.O.No.2487 of 1987 that, “none of the parties
shall have any claim whatsoever as against the applicant in respect
of the purchased property which shall be deemed to be his absolute
property on and from the expiry of 15th December, 1980”, has
attained finality;
(v) Section 65 of the Code says that, “where immovable property is
sold in execution of a decree and such sale has become absolute, the
property shall be deemed to have vested in the purchaser from the
time when the property is sold and not from the time when the sale
becomes absolute”. The sale of a property becomes absolute under
Order XXI, Rule 92(1) after an application made under Rule 89,
Rule 90 or Rule 91 is disallowed and the court passes an order
confirming the same. After the sale of an immovable property
21
becomes absolute in terms of Order XXI, Rule 92(1), the Court has
to grant a certificate under Rule 94. The certificate has to bear the
date and the day on which the sale became absolute. Thus a
conjoint reading of Section 65, Order XXI, Rule 92 and Order XXI,
Rule 94 would show that it passes through three important stages
(other than certain intervening stages). They are, (i) conduct of sale;
(ii) sale becoming absolute; and (iii) issue of sale certificate. After all
these three stages are crossed, the 4th stage of delivery of possession
comes under Rule 95 of Order XXI. It is at this 4th stage that the
appellants have raised the objection relating to Order XXI, Rule 64.
It is not as if the appellants were not aware of the fact that the
property in entirety was included in the proclamation of sale.
Therefore, the claim on the basis of Order XXI, Rule 64 was rightly
rejected by the High Court.
38. In view of the above, the appeal is devoid of merits and, hence,
it is dismissed. There will be no order as to costs.
......................................J.
(Hemant Gupta)
.......................................J.
(V. Ramasubramanian)
New Delhi
October 05, 2021
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