Dipali Biswas & Ors. v. Nirmalendu Mukherjee & Ors.
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 judgment-debtor 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.1-7/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 dec reed ex
parte on 25.07.1974, directing the defendant to pay the decretal amount
in six equal instalments with a default clause.
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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 Judgment-debtor filed an
application in Miscellaneous Case No.151 of 1975 assailing th e 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 judgment-debtor then fi led 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 penden cy of this
petition in Miscellaneous Case No.47 of 1979, the judgment-debtor
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 15 th 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 o n 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.”
DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.
[V. RAMASUBRAMANIAN, J.]
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 judgment-debtor with the auction purchasers did not refer to the
decree debt, but repeatedly mentioned the words, “entire money due to
the auction purchasers”, the judgment-debtor 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 judgment-
debtor deposited only a sum of Rs.3700/-, as against the amount of
Rs.5500/- deposited by the auction purchasers, the execut ing 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 21.06.19 83 and
remanded the matter back to the executing court, for re-heari ng 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 meri ts, 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 judgment-debtor 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 Cour t in C.O.
No.2487 of 1987 dated 20.12.1990. It reads as follows:-
“xxx xxx xxx xxx
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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 15 th December,
1980.”
11. Thereafter, a mention was made before the learned judge, on
behalf of the counsel for the judgment-debtor 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 pet ition 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 judgment-debtor 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 judgment-debtor 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 judgment-debtor filed a petition under
Order XXI, Rule 29 for stay of execution proceedings. But the application
of the judgment-debtor was dismissed and the applications of the auction
purchasers were allowed by the executing court by an orde r 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 judgment-debtor 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 grante d 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.
DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.
[V. RAMASUBRAMANIAN, J.]
Fourth Round
15. The 4 th 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 judgment-debtor had, in the meantime,
constructed a building on the land sold in execution of the decree, the
executing court directed the building so constructed illega lly, 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 judgment-debtor) in a Civil Petition No.106 of 2002 before the
Additional District Judge, Barasat. The same was di smissed on
26.02.2003. This order was challenged before the Hi gh 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 petiti on SLP(C)
No.12925 of 2005 filed against the said order, was dismissed by t his
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 execu ting
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
227
C.O.No.1115 of 2007 that the legal representatives of the judgm ent-
debtor 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 half-a-century 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 sol d and that
the proceeds of such sale or a sufficient portion th ereof 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 s atisfy 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 Reddivs. Pujari Padmavathamma & Ors 1, this Court
held that the, “ executing court derives jurisdiction to sell properties
attached, only to the point at which the decree is full y satisfied”,
and that the words, “necessary to satisfy the decree”, clearly indicate
that no sale can be allowed beyond the decretal amount mentione d in
the sale proclamation. This Court went further to hold that t he 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.
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/-. Y et 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,
1 (1977) 3 SCC 337
2 (1989) Supp. 2 SCC 693
DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.
[V. RAMASUBRAMANIAN, J.]
the court must bring only such portion of the property, the proceeds of
which would be sufficient to satisfy the decree debt a nd 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 the ext ent 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 XX I,
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 a fter
notice to the decree holder and the judgment-debtor. 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 decree-
holder and the judgment-debtor 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 t he 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
(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 te rms of
the proclamation has been given to the judgment-debtor by means
229
of an order under rule 54, it shall not be necessary to give notice
under this rule to the judgment-debtor 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 b y
sub-rule (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 simi lar 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 judgment-debtor, if a notice for settling the terms of the
proclamation had been given to the judgment-debtor 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
DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.
[V. RAMASUBRAMANIAN, J.]
of 1976, mandates that the prohibitory order under sub rule(1) shall require
the judgment-debtor to attend court on a specified date to take notice of
the date to be fixed for settling the terms of the proclama tion 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, R ule
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 A-3, the copy of the extract of rele vant 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 cou rt directed on
16.07.1975, the issue of sale proclamation under Order XXI, Rule 66.
30. Thereafter, the judgment-debtor 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 judgment-debt or
also granted stay of further proceedings on 26.09.1975. But it is no t
clear from Annexure A-3 of the additional documents fi led 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 judgment-
debtor, 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 publicati on. It is only
thereafter that the judgment-debtor moved a petition on 30.05.1979 for
postponement of the auction. It was rejected and the court pro ceeded
with the auction. The decree holder himself participated in the auction
after getting permission from the court. However, it is only t he third
parties who succeeded in getting the sale confirmed.
33. The above sequence of events would show that the judgment-
debtor had sufficient opportunity to object to the inclusion of the entire
231
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 judgment-
debtor 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 th e first
petition under Section 47 was filed on 02.09.1975. Th erefore, the
appellants cannot compare themselves to the judgment-debtors 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 1 st round, the appellants
exhausted the gun-powder 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 kick-started 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 3 rd round started with objections to the issue of sale
certificate and it came to an end in the year 2001. The 4 th round
commenced when the auction purchasers moved the executing c ourt
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
DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.
[V. RAMASUBRAMANIAN, J.]
litigation was started by the appellants by filing a petition under Section
47 and raising the bogey of “ jurisdictional error” on account of non-
compliance with the mandate of Order XXI, Rule 64. In other word s,
the appellants have now exhausted almost all provisions available to a
judgment-debtor 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 judgment-debtor 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 judgment-
debtor 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 Secti on 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 ap plicant in
respect of the purchased property which shall be deemed to be his
absolute property on and from the expiry of 15 th December, 1980”,
has attained finality;
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(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 purchas er from
the time when the property is sold and not from the tim e 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 confi rming the
same. After the sale of an immovable property becomes ab solute in
terms of Order XXI, Rule 92(1), the Court has to grant a cer tificate
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 proclamati on 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.
Devika Gujral Appeal dismissed.
DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.
[V. RAMASUBRAMANIAN, J.]