Read Judgment: Dipali Biswas & Ors vs. Nirmalendu Mukherjee & Ors
New Delhi, October 8, 2021: While considering a half-a-century old dispute, the Supreme Court has dismissed the appeal arising out of the fifth round of litigation at the stage of execution of a simple money decree and held that the judgment debtor cannot be allowed to raise objections as to the method of execution in installments.
Pointing out that the original judgment debtor himself filed a petition u/s 47 of CPC, 1908, way back on September 2, 1975, a Division Bench of Justice Hemant Gupta and Justice V. Ramasubramanian observed that after having failed to raise the issue in four earlier rounds of litigation, the appellants (legal heirs of judgment debtor) cannot be permitted to raise it now.
What is on hand is a second petition u/s 47 and, hence, it is barred by res judicata, added the Bench.
The observation came pursuant to an appeal filed by the legal representatives of the judgment-debtor challenging the order of the High Court confirming the order of the Executing Court dismissing their application u/s 47 of the Code of Civil Procedure, 1908 for execution of money decree.
By the said order, the High Court had 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 therefore the auction sale was confirmed in favour of the auction purchasers.
The Apex Court quoted the decision in case of Takkaseela Pedda Subba Reddi vs. Pujari Padmavathamma and Ors , wherein it was 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.
Speaking for the Division Bench, Justice Ramasubramanian also mentioned the decision in the case of Ambati Narasayya vs M. Subha Rao & Anr, wherein it was 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.
The Bench also noted that the sequence of events would show that the judgment debtor 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 judgment debtor despite filing a petition u/s 47 on Sep 2, 1975, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided”, observed the Bench.
The Apex Court therefore reiterated that the notice of attachment under Order XXI, Rule 54 was ordered on January 10, 1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on July 16, 1975 and it was only thereafter that the first petition u/s 47 was filed on September 2, 1975.
The Top Court noted that even in the 5th round, the appellants had 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 realization of the decree debt.
“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”, observed the Division Bench.
Therefore, the Apex Court concluded that the claim on the basis of Order XXI, Rule 64 was rightly rejected by the High Court.