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NON REPORTABLE

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

        Versus

Bhupenshwar Prasad (D) Through Lrs. & Ors. …..Respondents

J U D G M E N T

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  

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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 decree-holder.

3. Ultimately,  on 8th October,  1964,  the parties  had come to  

some understanding, which had been recorded by the Court  

as under:

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“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, 1965:

“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.”

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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 February, 1970.   

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  

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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 automatically vacated.

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 property back.

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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  

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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.

                           ……...........................................J.

                                                      (ANIL R. DAVE)

                           ……...........................................J.

                                                    (A.K. SIKRI) New Delhi September 20, 2013

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