published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40819
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8398 OF 2013
(Arising out of SLP(C) No. 6094 of 2007)
Manju Swarup (D) through Lrs. …..Appellants
Bhupenshwar Prasad (D) Through Lrs. & Ors. …..Respondents
1 J U D G M E N T
1 ANIL R. DAVE, J.
1. Leave granted.
2. This is one of the cases which shows how miserable a decree holder
becomes in the execution proceedings. This is a Second Appeal in the
execution proceedings filed by the judgment debtor whose property was
ordered to be sold in the execution proceedings. In pursuance of a
suit, which had been filed in 1955, the final decree was passed and
the property of the appellant had been attached on 21st December,
1962. The execution proceedings had been continuing since then. The
facts, in a nutshell, are that the Execution Case No. 29 of 1962 was
filed for recovery of the decretal amount by the decree-holder.
Auction notice was published on 16th April, 1964. The appellant
herein, the judgment debtor had filed an application under Order
XXI, Rule 83 of the Code of Civil Procedure, 1908 (for short ‘the
CPC’) for postponement of the sale, as it was possible for the
judgment debtor to raise the decretal amount and pay the same to the
3. Ultimately, on 8th October, 1964, the parties had come to some
understanding, which had been recorded by the Court as under:
“The parties agree that time of four months be given to JD should
he deposit Rs.2000/- per month & deposits the entire amount in 4
(four) months. (…illegible) under Order 21 Rule 83 CPC be given.
If amount is not deposited in four months then the JD agrees that
property be sold without proclamation.”
4. The amount was not deposited by the judgment debtor within the
specified time and ultimately the executing court had passed the
following order on 3rd August, 1965:
“In case the JD has committed default in not making payment in
time, the execution has to proceed unless the decree holder (DH)
condones the delay. Let DH disclose by 19.08.1965 if he wants to
proceed or condone the delay of JD.”
5. The amount was still not paid by the judgment debtor and the judgment
debtor filed an application for extension of time and on the said
application, the court passed the following order on 28th August,
“I have heard learned counsel and gone through the proceeding.
There are no grounds why the JD should be allowed any further time.
47C2 is rejected.
Issue sale proclamation 28.10.1964. Deposit by 01.11.1965.”
6. An application made for stay of the auction proceedings, filed by the
judgment debtor, had been rejected by the order dated 23rd October,
1965 and ultimately the attached property was auctioned on 29th
October, 1965. At the time of the auction, 35 bidders were present
and the property was sold for Rs.13,700/-.
7. Thereafter, on 10th May, 1969, the judgment debtor filed an
application under Order XXI, Rule 90 of the CPC alleging that
irregularities were committed in the conduct of the auction and the
attached property had been sold at a lower price. The said
application was allowed by the executing court on the ground that the
sale price was inadequate.
8. Being aggrieved by the aforestated order dated 10th May, 1969, an
appeal had been filed, which had been allowed by the order dated 5th
9. The validity of the aforestated order dated 5th February, 1970 was
challenged by the judgment debtor by filing an Execution Second
Appeal No. 742 of 1970 before the High Court of Allahabad. The High
Court, by an interim order dated 11th May, 1970 gave an opportunity
to the appellant/judgment debtor to pay the entire decretal amount
within two months from the date of passing of the interim order,
failing which it was directed that the said order would stand
10. The entire decretal amount was admittedly not paid by the judgment
debtor and therefore, finally by an order dated 2nd February, 2006,
the Execution Second Appeal No. 742 of 1970 has been dismissed by the
High Court and being aggrieved by the said order, the judgment debtor
has filed this appeal.
11. The learned counsel appearing for the judgment debtor- the appellant
had mainly submitted that the decretal amount had been deposited by
the appellant in the court after the period specified by the High
Court was over and therefore, the sale should be cancelled and the
present appeal should be allowed so that the appellant can get his
12. On the other hand, the learned counsel appearing for the respondents
had submitted that the stay had been granted by the High Court by an
interim order dated 11th May, 1970 on the condition that the
appellant would pay the decretal amount within a specified period,
but that had not been paid or deposited within the time prescribed by
the High Court and therefore, the Execution Second Appeal has been
dismissed by the High Court. In the circumstances, no further
opportunity be given to the appellant.
13. We have heard the learned counsel and have also considered the facts
of the case. It is really deplorable that the heirs of the plaintiff
who had filed the original suit somewhere in 1955 are still unable to
get the decretal amount. In our opinion, sufficient opportunities
had been provided to the judgment debtor to pay the decretal amount
but every time the appellant failed to pay the decretal amount within
the period prescribed, this matter should have an end at this stage
and therefore, we dismiss the appeal and the stay granted by this
Court also stands vacated.
14. The appeal stands dismissed with no order as to costs.
(ANIL R. DAVE)
September 20, 2013