LAW FOR ALL

Thursday, October 7, 2021

Order XXI, Rule 64 CPC =.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 20 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.

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.

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.

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.

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

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

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

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.

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

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

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

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

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

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;

(d) the amount for the recovery of which the sale is ordered;

and

(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).

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

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.

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

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

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

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

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

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

benefit of parity =absconding for more than two years without any justifiable reason should have weighed in mind while granting her any discretionary relief. These facts put her on a starkly different pedestal than the coaccused with whom she seeks parity.We are, thus, of the considered view that the High Court has wrongly accorded the benefit of parity in favour of the RespondentAccused. It has to be borne in mind that the deceased met with a tragic end within three months of her marriage. While it is too early to term it an offence under Sections 302 or 304B I.P.C., but the fact remains that a young life came to an abrupt end before realizing any of her dreams which were grimly shattered. She died an unnatural death in her matrimonial home. The RespondentAccused is the motherinlaw of the deceased. The Investigating Agency, therefore, deserves a free hand to investigate the role of the RespondentAccused, if any, in the unnatural and untimely death of her daughter inlaw.Suffice to mention that the needle of suspicion revolves around only against the RespondentAccused and her family members while at this stage the others have been found innocent by the investigating agency

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.11611162 OF 2021

(ARISING OUT OF SLP (CRL.) NOS. 54045405 OF 2021)

Vipan Kumar Dhir ..... Appellant(s)

VERSUS

State of Punjab and another ..... Respondent(s)

JUDGMENT

Surya Kant, J.

Leave granted.

2. The challenge laid is to an order dated 28.01.2021 passed by the

High Court of Punjab and Haryana whereby anticipatory bail has been

granted to Respondent No.2 (hereafter ‘RespondentAccused’), who is

the motherinlaw of the deceased and is charged under Sections

304B, 302 read with 120B of Indian Penal Code (for short “I.P.C.”).

3. The prosecution version in brief is that the appellant (hereafter

‘Complainant’), who is the father of the deceased, lodged an FIR dated

02.10.2017 against 7 accused persons, 4 of whom are members of the

inlaws family of the deceased including the RespondentAccused. The

Page | 1

Complainant has alleged that his daughter was married to the son of

Respondentaccused on 28072017. Soon thereafter, the accused

family members started to harass and physically torture the deceased

on the pretext of dowry demands. His daughter died an unnatural

death on 02102017 in suspicious circumstances. There are specific

allegations visavis RespondentAccused alleging that she exploited

the deceased and deprived her of any chance to recuperate from the

arduous domestic chores. This was despite the fact that deceased was

also working as a fulltime lecturer in the local government college. It

was further alleged that due to nonfulfilment of the dowry demands,

the vicious cycle of humiliation and abuse continued to be meted out

to the deceased. The deceased contacted the Complainant on

30092017 and informed that she had been again physically tortured

because of her failure to meet their dowry demands. The Complainant

assured that he would try to amicably settle this household squabble

by coming to her marital home on the very next day. However, this

assurance could never be materialised as the accused are alleged to

have clandestinely administered poison to the deceased on

01.10.2017, which led to her unfortunate demise the following

morning. It is to be noted that the factum of poisoning is supported by

medical evidence gathered by the Investigating Agency.

Page | 2

4. Soon after the FIR was lodged, the RespondentAccused moved

an anticipatory bail application before the Sessions Court, which was

rejected on 21.12.2017. Discontented, the RespondentAccused

approached the High Court for a similar relief, but the petition was

dismissed as withdrawn on 08.03.2018. Meanwhile, on account of

noncooperation with the ongoing investigation, the SHO of the

concerned police station applied for and got issued arrest warrants

against the RespondentAccused from Judicial Magistrate. However,

the arrest warrant could not be executed as the RespondentAccused

had been on the run and she was thus declared an absconder on 23

042018 under Section 82 of the Code of Criminal Procedure (for

short, “Cr.P.C.”).

5. The RespondentAccused continued to evade her arrest until this

Court granted anticipatory bail to her younger son Daksh Adya

(brotherinlaw of the deceased) on 22.10.2019. Thereafter, taking

advantage of this subsequent event and presenting the same as a

material change in circumstance, RespondentAccused filed two

petitions before the High Court, seeking quashing of the order that

declared her a ‘proclaimed offender’ and further sought the relief of

anticipatory bail.

Page | 3

6. It is noted explicitly that during the pendency of the abovementioned proceedings, the High Court granted interim bail to the

RespondentAccused on 03.12.2020 and pursuant thereto, she joined

the investigation on 07.12.2020. Thereafter, vide the impugned order,

High Court allowed both the petitions and set aside the order

declaring the RespondentAccused as an absconder and also granted

her anticipatory bail. These reliefs were primarily allowed on two

grounds firstly that the RespondentAccused had joined the

investigation and undertook to remain present at each date of trial

proceedings; secondly she was entitled to seek parity with the coaccused Daksh Adya whom this Court granted anticipatory bail.

7. The aggrieved Complainant is before us, contending interalia,

that the High Court has committed a grave error of law in overlooking

the wellestablished principles which guide courts to exercise their

discretion in the matter of granting anticipatory bail. Learned State

Counsel has also supported the cause of AppellantComplainant.

8. We have heard Learned Counsel for the parties at length and

perused the relevant material placed on record.

9. At the outset, it would be fruitful to recapitulate the wellsettled

legal principle that the cancellation of bail is to be dealt on a different

footing in comparison to a proceeding for grant of bail. It is necessary

Page | 4

that ‘cogent and overwhelming reasons’ are present for the

cancellation of bail. Conventionally, there can be supervening

circumstances which may develop post the grant of bail and are nonconducive to fair trial, making it necessary to cancel the bail. This

Court in Daulat Ram and others vs. State of Haryana1

observed

that:

“Rejection of bail in a nonbailable case at the initial

stage and the cancellation of bail so granted, have to

be considered and dealt with on different basis. Very

cogent and overwhelming circumstances are

necessary for an order directing the cancellation of the

bail, already granted. Generally speaking, the

grounds for cancellation of bail, broadly (illustrative

and not exhaustive) are: interference or attempt to

interfere with the due course of administration of

Justice or evasion or attempt to evade the due course

of justice or abuse of the concession granted to the

accused in any manner. The satisfaction of the court,

on the basis of material placed on the record of

the possibility of the accused absconding is yet

another reason justifying the cancellation of bail.

However, bail once granted should not be cancelled in

a mechanical manner without considering whether

any supervening circumstances have rendered it no

longer conducive to a fair trial to allow the accused to

retain his freedom by enjoying the concession of bail

during the trial.”

These principles have been reiterated time and again, more

recently by a 3judge Bench of this Court in X vs. State of Telegana

and Another.

(1995) 1 SCC 349 at ¶ 4.

(2018) 16 SCC 511 at ¶ 1415.

Page | 5

10. In addition to the caveat illustrated in the cited decision(s), bail

can also be revoked where the court has considered irrelevant factors

or has ignored relevant material available on record which renders the

order granting bail legally untenable. The gravity of the offence,

conduct of the accused and societal impact of an undue indulgence by

Court when the investigation is at the threshold, are also amongst a

few situations, where a Superior Court can interfere in an order of bail

to prevent the miscarriage of justice and to bolster the administration

of criminal justice system. This Court has repeatedly viewed that

while granting bail, especially anticipatory bail which is per se

extraordinary in nature, the possibility of the accused to influence

prosecution witnesses, threatening the family members of the

deceased, fleeing from justice or creating other impediments in the fair

investigation, ought not to be overlooked.

11. Broadly speaking, each case has its own unique factual scenario

which holds the key for adjudication of bail matters including

cancellation thereof. The offence alleged in the instant case is heinous

and protrudes our medieval social structure which still wails for

reforms despite multiple efforts made by Legislation and Judiciary.

12. In the case in hand, the High Court seems to have been

primarily swayed by the fact that the RespondentAccused was ‘coPage | 6

operating’ with investigation. This is, however, contrary to the record

as the RespondentAccused remained absconding for more than two

years after being declared a proclaimed offender on 23.04.2018. She

chose to join investigation only after securing interim bail from the

High Court. She kept on hiding from the Investigating Agency as well

as Magistrate’s Court till she got protection against arrest from the

High Court in the 2nd round of bail proceedings.

13. Even if there was any procedural irregularity in declaring the

RespondentAccused as an absconder, that by itself was not a

justifiable ground to grant prearrest bail in a case of grave offence

save where the High Court on perusal of casediary and other material

on record is, prima facie, satisfied that it is a case of false or overexaggerated accusation. Such being not the case here, the High Court

went on a wrong premise in granting anticipatory bail to the

RespondentAccused.

14. The ground of parity with coaccused Daksh Adya invoked by the

High Court is equally unwarranted. The allegations in the FIR against

the RespondentMotherinLaw and her younger son Daksh Adya are

materially different. It is indubitable that some of the allegations

against all the family members are common but there are other

specific allegations accusing the RespondentAccused of playing a key

role in the alleged offence. The conduct of the RespondentAccused in

Page | 7

absconding for more than two years without any justifiable reason

should have weighed in mind while granting her any discretionary

relief. These facts put her on a starkly different pedestal than the coaccused with whom she seeks parity. We are, thus, of the considered

view that the High Court has wrongly accorded the benefit of parity in

favour of the RespondentAccused. It has to be borne in mind that

the deceased met with a tragic end within three months of her

marriage. While it is too early to term it an offence under Sections 302

or 304B I.P.C., but the fact remains that a young life came to an

abrupt end before realizing any of her dreams which were grimly

shattered. She died an unnatural death in her matrimonial home.

The RespondentAccused is the motherinlaw of the deceased. The

Investigating Agency, therefore, deserves a free hand to investigate the

role of the RespondentAccused, if any, in the unnatural and untimely

death of her daughter inlaw.

15. Learned Senior Counsel for the RespondentAccused may be

right in contending that the AppellantComplainant has widened the

net and included even other than the family members of the inlaws of

the deceased. According to him, the entire version of the AppellantComplainant should be seen with suspicious eyes as he being a retired

District Attorney, has a legally trained mind. We do not deem it

necessary to comment upon this contention at this stage. Suffice to

Page | 8

mention that the needle of suspicion revolves around only against the

RespondentAccused and her family members while at this stage the

others have been found innocent by the investigating agency.

16. In light of the above discussion and without expressing any

views on merit, we set aside the impugned order of the High Court

dated 28.01.2021 and direct the RespondentAccused to surrender

before the Trial Court within a period of one week. We make it clear

that the observations made herein above are limited for the purposes

of present proceedings and would not be construed as any opinion on

the merits of the case. We also clarify that after the surrender, the

RespondentAccused will be free to seek regular bail before the

concerned Trial Court and any such prayer shall be decided as per

law, without being influenced by this order.

The appeals are disposed of in the above terms.

..…………………….. CJI.

(N.V. RAMANA)

………..………………… J.

(SURYA KANT)

………..………………… J.

(HIMA KOHLI)

NEW DELHI

DATED : 04.10.2021

Page | 9

suit for specific performance - when the plaintiff is not willing to purchae along with tenant in the property as the defendant failed to evict them within the course, the plaintiff is not entitled for specific performance but is entitled for refund of the amount he paid with interest .

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6014-6015 OF 2021

K. Karuppuraj …Appellant(s)

Versus

M. Ganesan …Respondent(s)

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 27.11.2017 passed by the High Court of Judicature at

Madras in Appeal Suit No. 94 of 2010 by which the High Court has

allowed the said appeal by quashing and setting aside the judgment and

decree passed by the learned Trial Court dismissing the suit for specific

performance and consequently decreeing the suit, the original defendant

has preferred the present Civil Appeal No. 6014 of 2021.

1.1 Feeling aggrieved and dissatisfied with the judgment and order

dated 06.01.2020 rejecting the Review Application No. 71 of 2019 in

Appeal Suit No. 94 of 2010, the defendant as review applicant has

preferred the present Civil Appeal No. 6015 of 2021.

2. The facts leading to the present appeals in a nutshell are as

under:-

2.1 An agreement for sale of the property situated in Kaspa

Coimbatore was entered into between the plaintiff and the defendant

wherein the defendant agreed to sell the same for a sale consideration

of Rs. 16.20 lakhs to the plaintiff. A part sale consideration of

Rs.3,60,001/- was paid at the time of execution of the agreement to sell.

There were certain conditions stipulated in the agreement to sell. One of

the conditions was that the defendant as original owner was required to

evict the tenants from the property in question and thereafter to execute

the sale deed on receipt of the full sale consideration. The plaintiff sent

a legal notice to the defendant asking to evict the tenants from the

property in question and to execute the sale deed on receipt of the

balance sale consideration vide notice dated 01.07.2006.

2.2 That thereafter the plaintiff filed the present suit before the learned

Trial Court for specific performance of the contract. It was the case on

behalf of the plaintiff that he was ready and willing to perform his part of

the contract but the defendant did not evict the tenants and come

forward to execute the sale deed. Therefore, it was averred in the plaint

that the defendant has to evict the tenants and perform his part of the

contract and execute the sale deed. It was pleaded on behalf of the

plaintiff that he was ready with the cash in his savings account and,

therefore, he was always ready to perform his part of the contract. The

defendant contested the suit by filing the written statement. Readiness

and willingness on the part of the plaintiff and to perform the specific part

of the contract was specifically denied. It was submitted that vacant

possession was already known to the plaintiff as the tenants had been

vacated and inspite of such the plaintiff was not ready to pay the

remaining consideration. The learned Trial Court framed the following

issues:-

“1. Whether the plaintiff is entitled for specific

performance?

2. Whether the plaintiff was ready and willing to

purchase the property?

3. To what relief?”

2.3 Both the sides led the evidence, documentary as well as oral. On

appreciation of evidence and considering the pleadings in the plaint, the

learned Trial Court held the issue of readiness on the part of the plaintiff

in favour of the plaintiff, however, held that the plaintiff was not willing to

get the sale deed executed as it is, and, therefore, held the issue of

willingness against the plaintiff. The Trial Court also held that the

defendant has failed to prove that tenants had vacated the suit property

as claimed, however, the learned Trial Court held on willingness against

the plaintiff by observing that the plaintiff has not shown the willingness

to purchase the property with the tenants and there are no such

pleadings in the plaint and that the plaintiff has not elected to purchase

the property as its nature. Therefore, the Trial Court on appreciation of

the evidence ultimately held that the plaintiff was not at all willing to

purchase the property with the tenants. Accordingly, the learned Trial

Court dismissed the suit and refused to pass the decree for specific

performance of the contract and directed the defendant to refund the

advance amount of Rs.3,60,001/- with interest @ 18% p.a. from the date

of agreement till the date of realization, to be paid within a period of two

months. The learned Trial Court also directed that there shall be a

charge over the property till such amount is realized by the plaintiff from

the defendant.

2.4 Feeling aggrieved and dissatisfied with the judgment and decree

passed by the learned Trial Court dismissing the suit for specific

performance, the plaintiff filed the appeal suit before the High Court. By

the impugned judgment and order, relying upon the affidavit filed before

the High Court in which for the first time the plaintiff stated that he is

ready and willing to purchase the property with the tenants, the High

Court without even re-appreciating the entire evidence on record and

even without framing the points for determination has allowed the appeal

by the impugned judgment and order and has set aside the judgment

and decree passed by the learned Trial Court, and consequently has

decreed the suit for specific performance of the contract.

2.5 Feeling aggrieved and dissatisfied with the impugned judgment

and order/decree passed by the High Court – First Appellate Court

allowing the appeal and consequently decreeing the suit for specific

performance of the contract, the original defendant has preferred the

present appeal being Civil Appeal No.6014 of 2021. After the impugned

judgment and order/decree, the defendant filed the review application

before the High Court, which has been dismissed, which is the subject

matter of Civil Appeal No.6015 of 2021.

3. Shri Ratnakar Dash, learned senior counsel appearing for the

appellant/defendant has vehemently submitted that in the facts and

circumstances of the case, the High Court has materially erred in

allowing the appeal and decreeing the suit for specific performance of

the contract.

3.1 It is vehemently submitted by the learned senior counsel appearing

for the appellant that the impugned judgment and order passed by the

High Court as a First Appellate Court cannot be sustained. It is

submitted that as such the High Court has not exercised the appellate

jurisdiction vested in it, particularly, while exercising the jurisdiction under

Section 96 read with Order XLI Rule 31 of the Civil Procedure Code. It

is submitted that the High Court has not at all re-appreciated the

evidence on record and without even discussing the evidence on record

and even without raising the points for determination on the basis of the

issues which were framed by the learned Trial Court, the High Court has

allowed the appeal and has decreed the suit for specific performance,

which otherwise is not permissible.

3.2 It is further submitted by learned senior counsel appearing on

behalf of the appellant that there is no re-appreciation of evidence on the

issue of willingness on the part of the plaintiff, which was dealt with and

considered by the learned Trial court in detail and the issue which was

held against the plaintiff.

3.3 It is submitted that even the High Court has erred in passing the

impugned judgment and order relying upon the affidavit of the

respondent-plaintiff, which was filed before the High Court in which for

the first time the plaintiff came out with a case that he is ready and

willing to purchase the property with tenants. It is submitted that such a

course adopted by the High Court is wholly impermissible under the law.

3.4 It is submitted that what was not pleaded by the plaintiff in the

plaint on willingness to purchase the property with tenants has now been

permitted by the High Court relying upon the affidavit filed before the

High Court for the first time. It is submitted that the affidavit filed by the

plaintiff before the High Court that he is ready and willing to purchase the

property with tenants is just contrary to the pleadings in the plaint and

even the findings recorded by the learned Trial Court.

3.5 It is further submitted by learned senior counsel appearing for the

appellant that as such the plaintiff never agreed to purchase the property

with tenants and as per the case of the plaintiff and so averred in the

plaint, it was pleaded that it was the responsibility of the defendant to

evict the tenants and hand over the peaceful vacant possession and

execute the sale deed. It is submitted that, therefore, thereafter it was

not open on the part of the plaintiff to submit that he is ready and willing

to purchase the property with tenants and that too by an affidavit for the

first time filed before the High Court.

3.6 It is submitted that without even permitting the plaintiff to amend

the plaint, the course adopted by the High Court permitting to change his

stand by way of an affidavit is unknown to law and the procedure to be

followed under the provisions of the CPC. Making above submissions

and relying upon the decisions of this Court in the case of B.V. Nagesh

and Anr. Vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, H. Siddiqui

(Dead) by LRs. Vs. A. Ramalingam (2011) 4 SCC 240 and State Bank

of India and Anr. Vs. Emmsons International Limited and Anr. (2011)

12 SCC 174, it is prayed to allow the present appeal and quash and set

aside the impugned judgment and order passed by the High Court and

consequently dismiss the suit.

4. Present appeal is vehemently opposed by Mr. Navaniti Prasad

Singh, learned senior counsel appearing on behalf of the respondent –

original plaintiff.

4.1 It is vehemently submitted by learned senior counsel appearing on

behalf of the respondent - plaintiff that as such as per the condition in the

agreement to sell, it was the responsibility of the defendant to evict the

tenants and thereafter to hand over the peaceful and vacant possession

and execute the sale deed on receipt of the balance sale consideration.

It is submitted that in the present case admittedly the defendant did not

perform his part of evicting the tenants. It is submitted, therefore, that to

allow the suit and pass the decree for specific performance will

tantamount to giving a premium to the defendant, who has failed to

perform his part under the agreement to sell.

4.2 It is submitted that as such against the total sale consideration of

Rs.16.20 lakhs, defendant paid only Rs. 3,60,001/- at the time of

execution of agreement to sell. It is submitted that, therefore, when

subsequently the learned Trial Court held that plaintiff did not elect to get

the sale deed executed with tenants, the defendant rightly filed an

affidavit before the High Court and stated that he is ready and willing to

get the sale deed executed even with tenants. It is submitted, therefore,

that by allowing the defendant to file the affidavit to contend that he is

ready and willing to get the sale deed executed and to purchase the

property with tenants, the High Court has done the substantial justice so

as to not to permit the defendant to take the benefit of his own wrong in

not evicting the tenants.

4.3 It is further submitted by learned senior counsel appearing on

behalf of the respondent - plaintiff that even the defendant has not

returned the amount of part consideration paid, i.e., Rs.3,60,001/- with

interest @ 18% p.a. to the plaintiff though directed by the learned Trial

Court. In the alternative, it is submitted by the learned senior counsel

appearing on behalf of the respondent that the technicalities shall not

come in the way of the plaintiff and, therefore, the matter may be

remitted to the High Court and permit the plaintiff to amend the plaint in

exercise of powers under Order VI Rule 17 of the CPC.

4.4 Alternatively, it is also submitted that if this Court is of the opinion

that the High Court ought not to have disposed of the appeal without

determining the points for determination on the issues framed by the

learned Trial Court, in that case, the matter may be remitted to the High

Court for fresh consideration and to decide and dispose of the appeal

afresh after framing the points for determination as required under Order

XLI Rule 31 of the CPC. Making above submissions, it is prayed to

dismiss the present appeal.

5. Heard the learned counsel for the respective parties at length.

6. In the present case, the original plaintiff instituted a suit for specific

performance of the contract. On appreciation of evidence, the learned

Trial Court held the issue of readiness in favour of the plaintiff. However,

refused to pass the decree for specific performance of the contract on

the ground that the plaintiff was not willing to purchase the property with

tenants. Therefore, the issue with respect to willingness was held

against the plaintiff. In an appeal filed before the High Court under

Section 96 read with Order XLI by the impugned judgment and order, the

High Court has allowed the said appeal and has quashed and set aside

the decree passed by the learned Trial Court dismissing the suit and

consequently has decreed the suit for specific performance. Having

gone through the impugned judgment and order passed by the High

Court, it can be seen that there is a total non-compliance of the Order

XLI Rule 31 of CPC. While disposing of the appeal, the High Court has

not raised the points for determination as required under Order XLI Rule

31 CPC. It also appears that the High Court being the First Appellate

court has not discussed the entire matter and the issues in detail and as

such it does not reveal that the High Court has re-appreciated the

evidence while disposing of the first appeal. It also appears that the

High Court has disposed of the appeal preferred under Order XLI CPC

read with Section 96 in a most casual and perfunctory manner. Apart

from the fact that the High Court has not framed the points for

determination as required under Order XLI Rule 31 CPC, it appears that

even the High Court has not exercised the powers vested in it as a First

Appellate Court. As observed above, the High Court has neither reappreciated the entire evidence on record nor has given any specific

findings on the issues which were even raised before the learned Trial

Court.

6.1 In the case of B.V. Nagesh and Anr. (supra), this Court has

observed and held that without framing points for determination and

considering both facts and law; without proper discussion and assigning

the reasons, the First Appellate Court cannot dispose of the first appeal

under Section 96 CPC and that too without raising the points for

determination as provided under Order XLI Rule 31 CPC. In paragraphs

3 and 4, it is observed and held as under:-

“3. How the regular first appeal is to be disposed of

by the appellate court/High Court has been considered

by this Court in various decisions. Order 41 CPC deals

with appeals from original decrees. Among the various

rules, Rule 31 mandates that the judgment of the

appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(d) where the decree appealed from is reversed or

varied, the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or

affirm the findings of the trial court. The first appeal is a

valuable right of the parties and unless restricted by law,

the whole case is therein open for rehearing both on

questions of fact and law. The judgment of the appellate

court must, therefore, reflect its conscious application of

mind and record findings supported by reasons, on all

the issues arising along with the contentions put forth,

and pressed by the parties for decision of the appellate

court. Sitting as a court of first appeal, it was the duty of

the High Court to deal with all the issues and the

evidence led by the parties before recording its findings.

The first appeal is a valuable right and the parties have

a right to be heard both on questions of law and on facts

and the judgment in the first appeal must address itself

to all the issues of law and fact and decide it by giving

reasons in support of the findings. (Vide Santosh

Hazari v. Purushottam Tiwari [(2001) 3 SCC 179], SCC

p. 188, para 15 and Madhukar v. Sangram [(2001) 4

SCC 756] , SCC p. 758, para 5.)”

6.2 In the case of Emmsons International Limited and Anr. (supra)

while considering the scope and ambit of exercise of powers under

Section 96 of CPC by the Appellate Court and after considering the

decisions of this Court in the cases of Madhukar and Ors. Vs. Sangram

and Ors., (2001) 4 SCC 756; H.K.N. Swami Vs. Irshad Basith (Dead)

by LRs., (2005) 10 SCC 243 and Jagannath Vs. Arulappa and Anr.,

(2005) 12 SCC 303, it is held that sitting as a Court of First Appeal, it is

the duty of the Appellate Court to deal with all the issues and the

evidence led by the parties before recording its findings.

6.3 In the case of H. Siddiqui (Dead) by LRs. (supra), it is observed

and held in paragraph 21 as under:-

“21. The said provisions provide guidelines for the

appellate court as to how the court has to proceed and

decide the case. The provisions should be read in such

a way as to require that the various particulars

mentioned therein should be taken into consideration.

Thus, it must be evident from the judgment of the

appellate court that the court has properly appreciated

the facts/evidence, applied its mind and decided the

case considering the material on record. It would

amount to substantial compliance with the said

provisions if the appellate court's judgment is based on

the independent assessment of the relevant evidence on

all important aspects of the matter and the findings of

the appellate court are well founded and quite

convincing. It is mandatory for the appellate court to

independently assess the evidence of the parties and

consider the relevant points which arise for adjudication

and the bearing of the evidence on those points. Being

the final court of fact, the first appellate court must not

record mere general expression of concurrence with the

trial court judgment rather it must give reasons for its

decision on each point independently to that of the trial

court. Thus, the entire evidence must be considered and

discussed in detail. Such exercise should be done after

formulating the points for consideration in terms of the

said provisions and the court must proceed in

adherence to the requirements of the said statutory

provisions. (Vide Sukhpal Singh v. Kalyan Singh [AIR

1963 SC 146] , Girijanandini Devi v. Bijendra Narain

Choudhary [AIR 1967 SC 1124] , G.

Amalorpavam v. R.C. Diocese of Madurai [(2006) 3 SCC

224] , Shiv Kumar Sharma v. Santosh Kumari [(2007) 8

SCC 600] and Gannmani Anasuya v. Parvatini

Amarendra Chowdhary [(2007) 10 SCC 296 : AIR 2007

SC 2380] .)”

7. Applying the law laid down by this Court in the aforesaid decisions,

if the impugned judgment and order passed by the High Court is

considered, in that case, there is a total non-compliance of the

provisions of the Order XLI Rule 31 CPC. The High Court has failed to

exercise the jurisdiction vested in it as a First Appellate Court; the High

Court has not at all re-appreciated the entire evidence on record; and not

even considered the reasoning given by the learned Trial Court, in

particular, on findings recorded by the learned Trial Court on the issue of

willingness. Therefore, as such, the impugned judgment and order

passed by the High Court is unsustainable and in normal circumstances

we would have accepted the request of the learned senior counsel

appearing on behalf of the respondent to remand the matter to the High

Court for fresh consideration of appeal. However, even on other points

also, the impugned judgment and order passed by the High Court is not

sustainable. We refrain from remanding the matter to the High Court

and we decide the appeal on merits.

8. It is required to be noted that as per the case of the original

plaintiff, the defendant was required to evict the tenants and hand over

the physical and vacant possession at the time of execution of the sale

deed on payment of full sale consideration. Even in the suit notice

issued by the plaintiff, the plaintiff called upon the defendant to evict the

tenants and thereafter execute the sale deed on payment of full

consideration from the plaintiff. Even when we consider the pleadings

and the averments in the plaint, it appears that the plaintiff was never

willing to get the sale deed executed with tenants and/or as it is. It was

the insistence on the part of the plaintiff to deliver the vacant possession

after evicting the tenants. Therefore, on the basis of the pleadings in the

plaint and on appreciation of evidence, the learned Trial Court held the

issue of willingness against the plaintiff. However, before the High

Court, the plaintiff filed an affidavit stating that he is now ready and

willing to get the sale deed executed with respect to the property with

tenants and unfortunately, the High Court relying upon the affidavit in the

first appeal considered that as now the plaintiff is ready and willing to

purchase the property with tenants and get the sale deed executed with

respect to the property in question with tenants, the High Court has

allowed the appeal and decreed the suit for specific performance. The

aforesaid procedure adopted by the High Court relying upon the affidavit

in a First Appeal by which virtually without submitting any application for

amendment of the plaint under Order VI Rule 17 CPC, the High Court as

a First Appellate Court has taken on record the affidavit and as such

relied upon the same. Such a procedure is untenable and unknown to

law. First appeals are to be decided after following the procedure to be

followed under the CPC. The affidavit, which was filed by the plaintiff

and which has been relied upon by the High Court is just contrary to the

pleadings in the plaint. As observed hereinabove, there were no

pleadings in the plaint that he is ready and willing to purchase the

property and get the sale deed executed of the property with tenants and

the specific pleadings were to hand over the peaceful and vacant

possession after getting the tenants evicted and to execute the sale

deed. The proper procedure would have been for the plaintiff to move a

proper application for amendment of the plaint in exercise of the power

under Order VI Rule 17 CPC, if at all it would have been permissible in a

first appeal under Section 96 read with Order XLI CPC. However,

straightaway to rely upon the affidavit without amending the plaint and

the pleadings is wholly impermissible under the law. Therefore, such a

procedure adopted by the High Court is disapproved.

The learned Trial Court held the issue of willingness against the

plaintiff by giving cogent reasons and appreciation of evidence and

considering the pleadings and averments in the plaint. We have also

gone through the averments and the pleadings in the plaint and on

considering the same, we are of the opinion that the learned Trial Court

was justified in holding the issue of willingness against the plaintiff. The

plaintiff was never ready and willing to purchase the property and/or get

the sale deed executed of the property with tenants. It was for the first

time before the High Court in the affidavit filed before the High Court and

subsequently when the learned Trial Court held the issue of willingness

against the plaintiff, the plaintiff came out with a case that he is ready

and willing to purchase the property with tenants. For the purpose of

passing the decree for specific performance, the plaintiff has to prove

both the readiness and willingness. Therefore, once it is found on

appreciation of evidence that there was no willingness on the part of the

plaintiff, the plaintiff is not entitled to the decree for specific performance.

Therefore, in the present case, the learned Trial Court was justified in

refusing to pass the decree for specific performance.

9. The submission on behalf of the plaintiff that in the agreement a

duty was cast upon the defendant to evict the tenants and to handover

the vacant and peaceful possession, which the defendant failed and,

therefore, in such a situation, not to pass a decree for specific

performance in favour of the plaintiff would be giving a premium to the

defendant despite he having failed to perform his part of the contract.

The aforesaid seems to be attractive but for the purpose of passing a

decree for specific performance, readiness and willingness has to be

established and proved and that is the relevant consideration for the

purpose of passing a decree for specific performance.

10. Now, so far as the submission on behalf of the plaintiff that even

the defendant has not refunded the amount of Rs.3,60,001/- with interest

@ 18% as ordered by the learned Trial Court concerned, the order

passed by the learned Trial Court is very clear and the defendant is

saddled with the law to pay the interest @ 18% till its realization.

Therefore, the plaintiff is compensated by awarding 18% interest. His

not refunding the amount of part sale consideration with 18% interest as

ordered by the learned Trial Court cannot be a ground to confirm the

impugned judgment and order passed by the High Court. The plaintiff as

such could have filed an execution petition to execute the

judgment/decree passed by the learned Trial Court. Further, we propose

to issue a direction to the appellant – original defendant directing him to

refund the amount of Rs.3,60,001/- with 18% interest from the date of

the agreement till the date of realization within a period of eight weeks

from today.

11. In view of the above and for the reasons stated above, both the

appeal succeeds. The impugned judgment and order passed by the

High Court of judicature at Madras in Appeal Suit No. 94 of 2010 is

hereby quashed and set aside and the judgment and decree passed by

the learned Trial Court stands restored. However, in the facts and

circumstances of the case, the appellant herein original defendant is

directed to refund the amount of Rs.3,60,001/- with 18% interest from

the date of agreement till realization within a period of eight weeks from

today. Appeals are allowed to the aforesaid extent, however, there shall

be no order as to costs.

Pending applications, if any, also stand disposed of.

………………………………….J.

[M.R. SHAH]

NEW DELHI; ………………………………….J.

OCTOBER 04, 2021. [A.S. BOPANNA]

Saturday, October 2, 2021

whether the High Court was justified in taking note of the information merely because it was secured under the RTI Act, to be the basis for its conclusion. = information furnished under the RTI Act showing the name of the respondent at Serial No.301, having obtained 114.80 marks was the select list which was prepared for the first time, which was the subject matter of litigation; had been set aside and was therefore not reckonable. In the reselect list, the name of the respondent is shown at Serial No.474 having obtained 109.86 marks. The marks awarded by the three Selection Committee members in the Vivavoce is shown as 16;20.20 and 7, the total of which to be divided by 3 will work out to the average of 14.40 marks in Vivavoce. The same if added to the career marks of 95.46, the total would be 109.86 marks which is in consonance with the stand taken and contention put forth by the appellants. 14. Hence, all these aspects will reveal that, though it had been shown as 114.80 marks in the list which was finalised on 31.01.1997, when it is admitted that the said list had been set aside by the SAT accepting the allegations of the applicants therein that the list had not been appropriately prepared, neither the respondent nor the High Court ought to have placed reliance on the same when the reselection list prepared afresh was acted upon for appointment. In that view, the order passed by the High Court cannot be sustained.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 59635964 OF 2021

(Arising out of SLP(Civil) Nos.93029303/2019)

State of Odisha & Ors. .…Appellant(s)

Versus

Arati Mohapatra …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

1. The AppellantState of Odisha & others are before this

Court in these appeals assailing the orders dated 20.03.2018

and 06.12.2018 passed by the High Court of Orissa in WP(C)

No.22713/2014 and Review Petition No.230/2018. By the order

passed in the writ petition, the learned Division Bench of the

High Court has set aside the orders passed by the Odisha

Page 1 of 11

Administrative Tribunal, Cuttack Bench in O.A.

No.2699(C)/2006 and M.P. No.729(C)/2006.

2. The brief facts leading to the present round of litigation

between the parties has the genesis in the selection process

which was initiated in the year 1996 for recruitment of primary

school teachers in government schools, in the State of Odisha.

Through the resolution dated 12.03.1996 the procedure for

recruitment was formulated and the selection process was

initiated. Pursuant thereto a list consisting of 379 candidates

selected for appointment was published on 31.01.1997. The

name of the respondent herein was indicated at Serial No.301

and it had depicted that the respondent had secured 114.80

marks. The respondent was accordingly appointed as an

Assistant Teacher in Singiri, in the Pay Scale of Rs.108030

EB301800. The respondent no.1 had joined duty on

30.07.1997.

3. When this was the position a group of aggrieved

unsuccessful candidates approached the State Administrative

Tribunal (for short ‘SAT’) in O.A. No.2792(C)/1999 and

analogous petitions alleging irregularities and foul play in the

Page 2 of 11

selection process. The SAT having considered the same,

accepted the contention of the applicants and through the order

dated 24.01.2001 directed the recruiting authority to prepare a

fresh select list category wise. Since the said process had not

been completed, one of the applicants Ms. Prem Lata Panda

filed a Contempt Petition No.382(C)/2001 before the SAT

alleging noncompliance of the order dated 24.01.2001. The

SAT, through the order dated 02.12.2004 directed that a fresh

select list be prepared within four months. The appellants

herein, in compliance thereto prepared a fresh selection list

dated 15.12.2004 and the appointments made were withdrawn

in order to comply with the order.

4. One Ms. Saillasuta Dei filed an application before the SAT

in O.A.No.305/2005 impugning the action of the appellants in

withdrawing the appointments and in that light sought for

strict implementation of the order dated 24.01.2001 passed in

O.A. No.2792(C)/1999 and analogous matters. In that view, the

appellants appointed a Committee on 08.09.2006 to prepare a

fresh merit list as also a reselect list of candidates which was

accordingly prepared and approved on 17.11.2006. As per the

Page 3 of 11

list the last of the candidate selected in the general category

had secured 111.53 marks. The marks shown against the name

of the respondent was 109.86 due to which the appellants

contended that the respondent was not entitled to continue in

service.

5. In that view, the respondent was terminated from service

on 30.11.2006. The respondent claiming to be aggrieved by

such termination filed an application before the SAT in O.A.

No.2699(C)/2006. Certain other candidates who were

terminated from service either due to the criteria of the

difference in marks or due to the fabrication of documents had

also approached the SAT making out a grievance with regard to

the termination. The SAT having taken note of the rival

contentions passed a common order dated 03.06.2014 wherein

the O.A. No.2699(C)/2006 filed by the respondent herein was

also disposed of. However, in the course of the order the SAT

had taken note that the applicants before it have already been

terminated from service because they filed forged

certificates/documents and a vigilance case is pending. Hence,

it ordered that a decision is to be taken after conclusion of the

Page 4 of 11

vigilance case. In that view, it was observed that if the decision

in the vigilance case goes in their favour they would be at

liberty to approach the departmental authorities for redressal of

their grievance relating to reinstatement.

6. The case of the respondent herein was also included in the

above said order. Obviously, the said observation was an error

insofar as the respondent is concerned since the termination of

the respondent was not due to that reason but due to the

difference in the marks which was noticed while preparing the

fresh reselection list. The respondent therefore filed a Review

Petition in M.P.No.729(C)/2006 before the SAT which was

disposed of by the order dated 21.10.2014. Though the said

observation was deleted by the review petition, the SAT having

taken note that the marks shown in the reselection list against

the name of the respondent being 109.88 as against what was

originally shown as 114.80 marks, did not see reason to

interfere with the termination order.

7. The respondent therefore claiming to be aggrieved by the

order dated 03.06.2014 in O.A. No.2699(C)/2006 and the order

dated 21.10.2014 in M.P. No.729(C)/2006 approached the High

Page 5 of 11

Court in the abovestated writ petition. The High Court on

taking note of the sequence of events, took into consideration

the marks which was originally awarded to the respondent i.e.,

114.80 marks, more particularly relying on the details of the

minutes dated 31.01.1997 which was obtained by the

respondent under the provisions of the Right to Information Act

(for short ‘RTI Act’) wherein the name of the respondent

appeared at Serial No.301 as she had been awarded 114.80

marks. The learned Division Bench of the High Court

accordingly directed the appellants herein to treat the

respondent as having secured 114.80 marks in the selection list

and communicate a reasoned order to the respondent within

three months. The review filed against the said order was

dismissed keeping in view the limited scope available in review,

rather than adverting to the contentions put forth on merit to

seek review. It is in that light, the appellants being aggrieved

are before this Court.

8. We have heard Mr. Sibo Sankar Mishra, learned counsel

appearing for the appellants, Mr. Ashok Panigrahi, learned

counsel appearing for the respondent and perused the appeals

Page 6 of 11

papers including the written submission filed on behalf of both

parties.

9. The sequence of the events noted above and the series of

litigation between the parties including the challenge to the

original selection list by a group of unsuccessful candidates

which led to the formation of a reselection committee and the

preparation of reselected list after considering the matter

afresh is not in serious dispute. Though the genesis for the

earlier select list being cancelled and the reselection list being

published was the allegation made by the unsuccessful

candidates in O.A. No.2792(C)/1999 and analogous petitions

that there was foul play in the process, the fact that the select

list has been rearranged based on the marks obtained is

evident from the facts narrated above. It is also undisputed that

the respondent is not one of those candidates against whom an

allegation is made with regard to the submission of fabricated

documents for obtaining appointment. In fact this aspect is

clear from the order dated 21.10.2014 passed by SAT in M.P.

No.729(C)/2006. In the said order, the reason to justify the

termination of respondent is taken note, which is that the

Page 7 of 11

respondent had obtained 109.88 marks and was accordingly

placed at the appropriate spot in the reselect list. The said

marks was lesser than the last selected candidate in the general

category, who had obtained 111.53 marks.

10. Against the above backdrop, it is noticed that the only

reason for which the High Court has intervened and directed

the appellants herein to consider the case of the respondent by

reckoning the marks secured by her as 114.80 is by taking note

of the information secured under RTI Act relied upon by the

respondent, wherein the minutes dated 31.01.1997 indicated

the marks obtained by the respondent as 114.80 marks and

she was placed at Serial No.301.

11. The learned counsel for the respondent seeks to justify

the conclusion reached by the High Court since according to

him the information was obtained from the official files under

the RTI Act and such information would justify that the

respondent having obtained 114.80 marks is entitled to be

selected, which action has been directed by the High Court to

be taken by the petitioners herein.

Page 8 of 11

12. The learned counsel for the appellants would, on the

other hand, contend that the error in the conclusion reached by

the High Court is due to the fact that the reliance was placed

on the list which was prepared on 31.01.1997, the details of

which were furnished under the RTI Act. Though that was the

position in the list finalised on 31.01.1997, the same had been

set aside by the SAT in O.A. No.2792(C)/1999 and due to the

orders passed therein, subsequent thereto a reselection list

was prepared. In the said process the marks were correctly

assigned wherein the marks obtained by the respondent in the

viva voce was 14.40 which while added to her marks obtained

towards matriculation of 44.42 marks and 51.04 marks in the

competitive test, the total would add up to 109.86 and not

114.80 marks as claimed. Hence, it is contended that the High

Court was not justified in its conclusion.

13. In the light of the above, the only question for

consideration is as to whether the High Court was justified in

taking note of the information merely because it was secured

under the RTI Act, to be the basis for its conclusion. We are of

the opinion that the High Court was not justified and had fallen

Page 9 of 11

into error. This is for the reason that the information furnished

under the RTI Act showing the name of the respondent at Serial

No.301, having obtained 114.80 marks was the select list which

was prepared for the first time, which was the subject matter of

litigation; had been set aside and was therefore not reckonable.

In the reselect list, the name of the respondent is shown at

Serial No.474 having obtained 109.86 marks. The marks

awarded by the three Selection Committee members in the

Vivavoce is shown as 16;20.20 and 7, the total of which to be

divided by 3 will work out to the average of 14.40 marks in

Vivavoce. The same if added to the career marks of 95.46, the

total would be 109.86 marks which is in consonance with the

stand taken and contention put forth by the appellants.

14. Hence, all these aspects will reveal that, though it had

been shown as 114.80 marks in the list which was finalised on

31.01.1997, when it is admitted that the said list had been set

aside by the SAT accepting the allegations of the applicants

therein that the list had not been appropriately prepared,

neither the respondent nor the High Court ought to have placed

reliance on the same when the reselection list prepared afresh

Page 10 of 11

was acted upon for appointment.

15. In that view, the order passed by the High Court cannot

be sustained. The orders dated 20.03.2018 and 06.12.2018

passed by the High Court of Orissa in WP(C) No.22713/2014

and in Review Petition No.230/2018 are set aside. The appeals

are accordingly allowed with no order as to costs.

16. Pending applications, if any, shall stand disposed of.

……………………….J.

(M.R. SHAH)

……………………….J.

(A.S. BOPANNA)

New Delhi,

September 27, 2021

Page 11 of 11

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Thursday, October 7, 2021

suit for specific performance - when the plaintiff is not willing to purchae along with tenant in the property as the defendant failed to evict them within the course, the plaintiff is not entitled for specific performance but is entitled for refund of the amount he paid with interest .

Saturday, October 2, 2021