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SLP(C)No. 25797 of 2004

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.

1. 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.

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2. 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.  

3. 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  

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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  

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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  

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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  

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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  

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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  

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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.

9. We thus, dismiss the Special Leave Petition in limine.

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

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

New Delhi October 28, 2013.

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