Under Art.136 of the constitution – Or.21, rule 89 C.P.C. – Duty of court to determine the amount payable by Jdr after auction done – amount determined belatedly – Jdr is not responsible – giving an opportunity to the Jdr by High court to pay the determined amount to set aside the sale – is not illegal = – SUKUMAR DE ………..PETITIONER(S) VERSUS BIMALA AUDDY & ORS. …………RESPONDENT(S) – http://judis.nic.in/supremecourt/imgst.aspx?filename=40909

Under Art.136 of the constitution – Or.21, rule 89 C.P.C. – Duty of court to determine the amount

payable by Jdr after auction done – amount determined belatedly – Jdr is not responsible – giving an opportunity to the Jdr by High court  to pay the determined amount to set aside the sale – is not illegal =

 

Under Order 21 Rule 89 C.P.C., a chance is  given  to

the applicant to deposit the amount payable  including  5  percent  for  the

successful auction purchases and on deposit of  that  amount  the  Executing

Court will set aside the sale on 10.7.1990 itself.  

The  Respondent  No.  4/ judgment debtor has filed the application requesting the executing court  to intimate the amount to be deposited so that he could file application  under

Order 21 Rule 89 of CPC. 

Though this application was rejected, the order  of

the executing court was set aside by the High Court  allowing  the  revision

of the judgment debtor and directing the executing  court  to  intimate  the

same to the judgment debtor.

 In the first instance,  the  amount  calculated

was Rs. 1.14 lakhs which turned out to be wrong calculations, in as much  as

the High Court set aside the said order and on  re-calculation,  the  amount

payable was calculated at Rs. 42,055.87/-. 

The Executing Court had  directed

the judgment debtors to pay this amount which was to be  paid  by  11.11.92.

 

 No doubt, the amount calculated is found to be correct but  the  High  Court

chose to give one opportunity to the judgment debtor to deposit  the  amount

as upto that stage the controversy regarding actual  payment  had  not  been

settled.

8.    In these  circumstances,  exercise  of  discretion  in  the  aforesaid

manner cannot be found to be erroneous and contrary to  law  which  warrants

interference of this Court under Article 136 of the Constitution  of  India.

Further, we do not find any substantial question of law.

 It is  also  to  be

kept in mind that immediately after the impugned order  of  the  High  Court

the judgment debtors had deposited the amount. There should not be  made  to

lose the property, in the aforesaid circumstances.

We thus, dismiss the Special Leave Petition in limine.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 25797 OF 2004

SUKUMAR DE ………..PETITIONER(S)

VERSUS

BIMALA AUDDY & ORS. …………RESPONDENT(S)
J U D G M E N T

A.K. SIKRI, J.

This case has a chequered history. However, we do not find it necessary to
narrate all the events leading to the filing of the present Special Leave
Petition, as the issue in the present Special Leave Petition, which arises
out of impugned judgment dated 8.6.2004 of the High Court of Calcutta, is a
narrow one. In fact, as would be noticed hereafter, the order in question
is discretionary in nature and the grievance of the petitioner is that in
the facts and circumstances of the present case no such discretion should
have been exercised by the High Court thereby granting one more opportunity
to the respondents to pay the decretal amount with interest, the effect of
which was to nullify the auction of the property in the execution
proceedings which was bought by the petitioners herein.
The facts which needs to be traversed for this purpose are recapitulated
below:
Way back in the year 1965, a money suit No. 20 of 1965 was
instituted by one Smt. Bimala Bala Sen, (since deceased) (hereinafter to be
referred as the decree holder) for a sum of Rs. 6,100/-, being refund of
earnest money. An ex parte decree was passed on 23.12.1967 against
Respondent Nos. 1 to 4, 6 and 7 herein (hereinafter to be referred as the
judgment debtors). This decree was in the sum of Rs. 6,600/- (Rs. 6,100/-
money claimed + Rs. 500/- as cost). The judgment debtors filed an
application for setting aside the ex parte decree which was dismissed and
appeals thereagainst were also dismissed. This decree thus, became final.
Execution Case was filed on 24.9.1970 by the decree holder.
In this execution proceedings, some objections were filed by the judgment
debtors. The Executing Court even gave opportunity to the judgment debtors
to deposit decretal amount. However, ultimately on 7.7.1990, the property
namely 11 Cottahs of land with a two storied pukka building situated at 46
and 48, R.K. Chatterjee Road, Kasba, Calcutta was put to auction and the
petitioners were the highest bidders therein with the bid of Rs. 1.5 lakhs.
On 9.7.1990, auction sale was confirmed. The petitioner deposited poundage
fee alongwith challan of one-fourth of the bid amount i.e. Rs. 37,500/-. On
the very next day, one of the judgment debtors namely Respondent No. 4
herein filed an application in the execution case for intimation as to how
the decreetal amount be deposited. This petition was however, rejected by
the Executing Court on 8.8.1990. Against this order, Revision Petition was
filed before the High Court under Section 115 of the Code of Civil
Procedure. On 9.11.1990, it was registered as C.O. 3515/1990. In the
meantime, on 12.11.1990, the petitioner deposited entire purchase money and
sale certificate was issued in their favour by the Executing Court.
4. The revision petition of the judgment debtors (C.O. 3515/1990) was
finally heard by the High Court and allowed on 10.4.1992. The High Court in
the said order noted the submission of the judgment debtors to the effect
that at the time of auction of the property value thereof was more than Rs.
8,00,000/- which was sold for a partly amount of Rs. 1.5 lakhs. It was also
pleaded that as the judgment debtors could not obtain particulars of the
auction sale through their lawyers, they could not file an application
under Order 21 Rule 89 of C.P.C. for depositing the requisite amount in the
execution case and get the sale set aside. On coming to know of the auction
sale, they moved the application for ascertaining the dues for the purpose
of filing application under Order 21 Rule 89 of the C.P.C. But the
Executing Court instead of giving information put the said application to a
future date i.e. on 8.8.1990 and thereafter dismissed the same. The High
Court noted the provisions of Rule 89 of Order 21 of the C.P.C., as per
which a person interested in setting aside the sale can deposit in Court a
sum equal to 5 percent of the auction purchaser and also for payment
through the decree holder, the amount specified in the proclamation of
sale. On this basis, the High Court concluded that it was necessary that
the amount should be determined before the deposit is made. Though it is
the responsibility of the applicant to see that the correct amount is
deposited, however, some sort of ministerial work has got to be done before
the determination of the correctness of the amount. Therefore, the
Executing Court was in error by not disclosing the amount which was to be
deposited and the judgment debtors should not suffer because of the mistake
of the Court. On these grounds, the order of the Executing Court was set
aside with direction that the Court below should proceed from the stage
when the application for determination of the amount to be deposited was
filed on 10.7.1990. Direction was given to the Court to determine the
amount to be deposited by the applicant/ judgment debtor and then
permitting him to deposit the amount as per order passed, according to law.
5. After receiving the order, aforesaid order of the High Court, the
Executing Court gave the direction to the Shristadar to submit a report of
the calculation of the amount. He, accordingly gave his report stating that
the judgment debtors had to pay a sum of Rs. 1.14 lakhs. Direction was
given to the JD’s to deposit the amount. This order was challenged by the
judgment debtors questioning the calculations made and submitted that
decretal amount of Rs. 6,600/- could not become Rs. 1.14 lakhs even after
adding interest etc. The High Court vide orders dated 22.9.1992 set aside
this order of the Execution Court as well on the ground that calculations
were wrong. Directions were given to the Executing Court to make the
calculation afresh.
6. Fresh calculations were made by Shristadar on 24.9.1992 significantly
reducing the amount due under decree to Rs. 42055.87/- from earlier
calculation of Rs. 1.14 lakhs. On that very day, the trial court directed
the judgment debtors to deposit the said amount by “November 1992”. This
order was also challenged by the judgment debtors by approaching the High
Court by means of a revision petition questioning the calculations. The
High Court even granted stay of the impugned order initially. This revision
petition kept pending for quite some time and is ultimately decided by the
impugned order only on 8.6.2004. Before the High Court, the petitioner or
the decree holder did not appear despite services of notice. High Court
noted that the calculations are correctly arrived at. At the same time it
deemed it proper to give one opportunity to the judgment debtors to deposit
the amount and the operative portion of the said order reads as under:
“Accordingly we dispose of the Revisional application by modifying the
order passed by the learned executing Court on 24.9.1992 in the manner
indicated herein below. The judgment debtor shall deposit with the
executing court a sum of Rs. 42,055,87 as calculated by the office of the
executing Court, within one month from date. On deposit of the said sum,
the sale shall stand set aside. The learned executing court shall take
steps to disburse to the purchaser and the decree holder their respective
dues as contemplated under clauses (a) of sub rule (1) of rule 89 of Order
21 of the Code. In addition to the above, the executing court shall make
over to the judgment debtors the stamps purchased by the auction purchaser
for the purpose of the sale certificate so that the amount of the stamps
may be recorded by the judgment debtor in accordance with the provisions of
section 54 of the Indian Stamp Act, 1899. The learned executing court shall
pass an order of the basis whereof the judgment debtor would be entitled to
receive back the amount of the stamp duty although the same had been
purchased in the name of the auction purchaser who will be entitled to
receive back the cash value thereof. The learned executing Court is
directed to take steps to dispose of the matter expeditiously since the
same has been pending for a long time.”

7. In sum and substance the position which emerges on the auction of the
property in question can be summarised as below:
The property was put up on auction on July, 1970 and the bid of the
petitioner in a sum of Rs.1.5 lakhs was the highest. The auction sale was
confirmed on 9.7.1990. Under Order 21 Rule 89 C.P.C., a chance is given to
the applicant to deposit the amount payable including 5 percent for the
successful auction purchases and on deposit of that amount the Executing
Court will set aside the sale on 10.7.1990 itself. The Respondent No. 4/
judgment debtor has filed the application requesting the executing court to
intimate the amount to be deposited so that he could file application under
Order 21 Rule 89 of CPC. Though this application was rejected, the order of
the executing court was set aside by the High Court allowing the revision
of the judgment debtor and directing the executing court to intimate the
same to the judgment debtor. In the first instance, the amount calculated
was Rs. 1.14 lakhs which turned out to be wrong calculations, in as much as
the High Court set aside the said order and on re-calculation, the amount
payable was calculated at Rs. 42,055.87/-. The Executing Court had directed
the judgment debtors to pay this amount which was to be paid by 11.11.92.
However, before that the judgment debtor filed another revision petition.
This revision petition is decided by the impugned order passed on 8.6.2004.
No doubt, the amount calculated is found to be correct but the High Court
chose to give one opportunity to the judgment debtor to deposit the amount
as upto that stage the controversy regarding actual payment had not been
settled.
8. In these circumstances, exercise of discretion in the aforesaid
manner cannot be found to be erroneous and contrary to law which warrants
interference of this Court under Article 136 of the Constitution of India.
Further, we do not find any substantial question of law. It is also to be
kept in mind that immediately after the impugned order of the High Court
the judgment debtors had deposited the amount. There should not be made to
lose the property, in the aforesaid circumstances.
We thus, dismiss the Special Leave Petition in limine.

……………………………………J.
[K.S. RADHAKRISHNAN]
……………………………………J.
[A.K. SIKRI]

New Delhi
October 28, 2013.