The Two Judge Bench of the #SupremeCourt has in the matter of Dipali Biswas v Nirmalendu Mukherjee passed a Judgment dated 05-10-2021 and made the following observations in a half-a-century old #litigation, which is at the stage of execution of a simple #moneydecree that started in 1971 and is still continuing its fifth round of litigation before the Apex Court.
In this case, the long pending litigation started as follows:
- One, Ms. Rama Rani Devi had filed a suit for recovery in a Money Suit in the year 1971 before the District Court, Bongaon, District 24 Parganas, West Bengal, against one, Mr. Sasadhar Biswas for recovery of Rs. 3000/-.
- The District Court passed an ex-parte Decree dated 25-07-1974, thereby directing the Defendant, Mr. Biswas to pay the decretal amount in six equal instalments.
- However, the Defendant failed to honour the Decree, hence, the Decree Holder filed an Execution Petition in 1975 seeking attachment and sale of a plot of land in Bongaon (Property). The Executing Court issued a Sale Proclamation on 16-07-1975. As per Order 21 Rule 66 of the Code of Civil Procedure 1908 (CPC), 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…
- Thereafter, the Judgment Debtor- Mr. Biswas filed an Application in 1975 to challenge the said Sale Proclamation issued by the Executing Court, on the ground of material irregularity and fraud, which was dismissed on 03-09-1975.
- Thereafter, an Auction Sale was held on 30-05-1979, whereby, two brothers, Mr. Sachindra Nath Mukherjee and Mr. Dulal Kanti Mukherjee, emerged as the highest bidders. They offered a sum of Rs. 5500/-, as the highest bid amount and also deposited the money in Court.
- The Judgement Debtor filed an Application before Executing Court in 1979 seeking setting aside of the Auction Sale on the ground of material irregularity in the Sale Proclamation.
- During the pendency of this Application, the Judgment Debtor entered into a Compromise with the Auction-Purchasers which recorded that the Judgment Debtor would pay the entire money due to the Auction-Purchasers in cash, within 15-12-1980, after which the Auction shall be revoked and in case, he is unable to meet the deadline, then Auction would remain effective. However, the amount to be paid was not clearly specified in the said Compromise Memo. The decretal amount was around Rs. 3360/-, but the amount deposited by the Auction-Purchasers in the Court was Rs. 5500/-. The Judgement Debtor deposited around Rs. 3700/- on 15-12-1980 and failed to deposit the balance amount of Rs. 1800/- within the given timelines. Hence, the Executing Court dismissed the said Application, vide Order dated 16-12-1980.
- However, the Executing Court later recalled its Order dated 16-12-1980 on 20-12-1980 and held that the Execution has been fully satisfied.
- Aggrieved, the Auction-Purchasers filed an Application on 22-12-1980 challenging the Executing Court’s decision to recall its earlier Order dated 16-12-1980 behind its back. But the said Application was dismissed by the Executing Court, vide Order dated 12-09-1981.
- Aggrieved, the Auction-Purchasers filed a Revision Application before the Calcutta High Court in 1981 challenging the Executing Court’s Order dated 12-09-1981.
- The High Court allowed the Revision by Order dated 21-06-1983 and remanded the matter back to the Executing Court, for re-hearing the Application of the Auction Purchasers which challenged the Executing Court’s decision to recall its Orders.
- The Executing Court passed a fresh Order on merits on 11-07-1987 and thereby rejected the Application filed by the Auction Purchasers.
- The said Order of the Executing Court dated 11-07-1987 was set aside by the High Court in a Revision filed by the Auction Purchasers in 1987, vide Order dated 20-12-1990 and later by a detailed Order dated 08-08-1991, on the ground that the Judgment Debtors failed to honour their commitments made in the Compromise Memo and hence, the Auction Sale should be confirmed.
- Aggrieved, the Judgment Debtors filed a Special Leave Petition (SLP) before the Apex Court in 1991 against the detailed Order dated 08-08-1991 passed by the High Court. The said SLP was dismissed by the Supreme Court vide Order dated 24-02-1992.
- Thereafter, the Judgment Debtors filed a Review Petition before the Apex Court, but the same was also dismissed on 12-08-1992.
- Later, the Judgement Debtors filed a Suit in 1992 before District Court, Bongaon, seeking declaration that Auction Sale is void. But the District Court dismissed the Suit on 02-12-1992.
- Meanwhile, the Auction Purchasers filed Petitions for issue of sale certificate before the Executing Court and the Judgment-Debtor also filed a Petition for stay of the Execution Proceedings.
- The Executing Court allowed the Petitions filed by the Auction Purchasers and dismissed the Petition filed by the Judgment-Debtor, vide Order dated 31-01-1994. Accordingly, a Sale Certificate was issued on 08-02-1994 and duly registered.
- Aggrieved, the Judgment Debtor filed a Revision in 1994 before the High Court challenging the Order of the Executing Court dated 31-01-1994 allowing the issue of Sale Certificate.
- The High Court eventually dismissed the Revision Petition by Order dated 05-09-2001 on the ground that the said issue had already been dealt with in its earlier detailed Order dated 08-08-1991.
- Thereafter, the Auction Purchasers filed an Application before the Executing Court seeking delivery of possession. Meanwhile, the Judgment Debtor had illegally constructed a building on the land sold to the Auction Purchasers. Hence, the Executing Court directed demolition of the said building, in its Order dated 16-04-2002.
- The said Order of the Executing Court dated 16-04-2002 effecting delivery of possession was challenged by the Legal Representatives of the Judgment Debtor (the Appellants) in a Civil Petition in 2002 before the Additional District Judge, Barasat. The said Petition was dismissed by Order dated 26-02-2003.
- The said Order dated 26-02-2003 was challenged before the High Court in 2003, which was again dismissed vide Order dated 11-02-2005 on the ground that the issue has already been dealt in its previous orders.
- Thereafter, the Supreme Court dismissed the SLP on 18-07-2005, that was filed against the High Court’s Order dated 11-02-2005 and also dismissed the Review Petition on 10-01-2006 that was filed thereafter.
- The Appellants filed a Petition in 2006 before the Executing Court under Section 47 of CPC- Questions to be determined by the Court executing decree. It is the contention of the Appellants that Order 21 Rule 64 CPC casts an obligation on the executing court to allow sale of only such portion of the property as may be sufficient to satisfy the decree. However, in this case, the Sale Auction had not been conducted properly as per the mandate of Order 21 Rule 64 CPC.
- The said Petition was dismissed by the Executing Court on 20-01-2007.
- The Appellants challenged the aforesaid Order of the Executing Court dated 20-01-2007 and filed a Revision before the High Court in 2007. The Revision was dismissed vide Order dated 28-03-2008 on the ground that the said issue was not raised earlier, so the same cannot be raised at this delayed stage.
Aggrieved by Order of the High Court dated 28-03-2008, the Appellants filed the present Appeal before the Apex Court. The Supreme Court made the following observations in this case:
(1) That the Appellants and the Judgment Debtor have been able to run this half-a-century old litigation only because of Order 21 Rule 64 CPC. The said 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”.
(2) That the Judgment Debtor had sufficient opportunity in the earlier rounds of litigation to object to the inclusion of the entire Property for Auction, on the ground that only a part of the Property would be sufficient to satisfy the Decree, as per Order 21 Rule 64 CPC.
(3) But (a) the Judgment Debtor failed to show how the Property being a vacant land could have been divided; and (b) the Judgment Debtor exhausted their opportunity earlier by taking the Compromise route.
(4) Moreover, the sale has attained its finality after issue of Sale Certificate and only delivery of possession is left. 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.
Hence, the Apex Court held that, now, at this delayed stage, the Judgment Debtor cannot raise this objection relating to Order 21 Rule 64 CPC, on the ground that a judgment-debtor cannot be allowed to raise objections as to the method of execution in instalments. Thus, the Apex Court dismissed the claim made on the basis of Order 21 Rule 64 CPC and thereby, dismissed the Appeal.
Senior Legal Associate
The Indian Lawyer
Sushila Ram Varma
Chief Consultant and Editor
The Indian Lawyer