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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL ORIGINAL JURISDICTION  

CONTEMPT PETITION (CRIMINAL) NO. 2/2012 IN  

CIVIL APPEAL NO. 8398/2013

YATINDER KUMAR AGGARWAL & ORS.     PETITIONER(S)

                               VERSUS

MUKUND SWARUP & ORS.                     RESPONDENT(S)

 WITH

REVIEW PETITION (C) NO. 57/2014  IN  

CIVIL APPEAL NO. 8398/2013  

MANJU SWAROOP (D)  THROUGH LRS.     PETITIONER(S)

                               VERSUS

BHUPESHWAR PRASAD (D) THROUGH LRS.                      RESPONDENT(S)

J U D G M E N T

A.K.SIKRI,J.  

To state the facts in brief, a civil suit was filed

by  Hari  Kishan  Das  (hereinafter  referred  to  as  the

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“plaintiff”) way back in the year 1955. It was a money

suit in which decree in the sum of Rs. 11,666.66 p. was

passed in favour of the plaintiff and against M/s. Diwan

Kripa Ram Radha Kishan (hereinafter referred to as the

“defendant”).  This  decree  was  upheld  by  the  District

Judge  and  by  the  High  Court  of  Allahabad  in  Second

Appeal.  The  problem  which  arose  thereafter  is  in  the

execution proceedings.  Execution Case No. 29 of 1962 was

filed by the plaintiff/decree holder as the decree was

not  fully  discharged.  Auction  notice  was  published  on

16.04.1964. At that stage the defendant/Judgment Debtor

filed an application under Order XXI Rule 83 of the Civil

Procedure Code, 1908 for postponement of sale pleading

that he would raise the decreetal amount and pay the same

to the plaintiff. Ultimately, on 08.10.1964 the parties

came to an understanding on the basis of which statement

was recorded by the Executing Court to the effect that

four  months'  time  be  given  to  the  defendant/Judgment

Debtor to deposit the entire amount.  It was also agreed

that if the amount was not deposited in four months, the

property would be sold without proclamation. Though the

defendant/Judgment Debtor paid certain amount but could

not make the full payment as per his statement. He filed

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an application for extension in which certain orders were

passed.  However,  ultimately  the  property  was  sold  and

purchased by the son of the plaintiff for a sum of Rs.

13,700/-. Objections against the same were filed stating

certain  irregularities  in  the  conduct  of  the  auction

which  were  dismissed.  Appeal  thereagainst  was  also

dismissed by the High Court.  That order was challenged

in C.A. No. 8398 of 2013 which was dismissed by this

Court  vide  judgment  dated  20.09.2013.  In  the  said

judgment it is,  inter alia,  noted that the decreetal

amount was admittedly not paid by the defendant/Judgment

Debtor which led to the dismissal of the Execution Second

Appeal by the High Court.  

The  instant  review  petition  is  preferred  by  the

defendant/Judgment  Debtor  ('the  appellant  in  the  said

appeal')  seeking  review  of  the  said  judgment  dated

20.09.2013.  It  may  also  be  noted  at  this  stage  that

during the pendency of the Special Leave Petition/Appeal

interim  orders  were  passed  restraining  the

defendant/Judgment Debtor from disposing of the property

in question. However, as per the plaintiff in violation

of those orders the defendant/Judgment Debtor sold the

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property  to  certain  persons.  Because  of  this  reason,

contempt  petition  is  preferred  by  the  plaintiff.

Arguments  were  heard  in  these  two  cases  which  are

disposed of by this common order.  

Adverting  to  the  review  petition,  in  the  first

instance,  the  case  set  up  by  the  defendant/review

petitioner is that this Court committed a factual error

in its judgment dated 20.09.2013 by recording that the

entire decreetal amount admittedly was not paid by the

defendant/Judgment  Debtor  because  of  which  execution

second  appeal  was  dismissed  by  the  High  Court.  It  is

submitted by Mr. D.K. Garg, learned counsel appearing on

behalf of the defendant/Judgment Debtor, that the entire

amount stood paid and the decree had been satisfied. In

order  to  buttress  his  submission  learned  counsel  has

referred  to  the  order  dated  17.02.1971  passed  by  the

District  Judge,  Saharanpur  in  Misc.  Appeal  No.  116  of

1970.  By  this  order  the  District  Judge,  Saharanpur

allowed  the  appeal  of  the  defendant/Judgment  Debtor

specifically holding that the amount as directed by the

High Court had rightly been deposited through the bank

drafts  and  that  amount  of  Rs.  13,800/-  which  was

deposited would be deemed to have complied with the order

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of the High Court dated 11.05.1970. It is also pointed

out  that  against  the  said  order  the  plaintiff/decree

holder had filed an appeal which was dismissed by the

High  Court  on  15.10.2001.  According  to  Mr.  Garg  the

defendant/Judgment Debtor, in fact, paid the amount in

excess.  Along  with  the  review  petition,  the

defendant/Judgment Debtor has filed various challans by

which  the  amount  was  deposited  in  the  executing  court

from time to time. The details of which are as under.  

Amount  due  as  mentioned  in  the Proclamation of Sale

Rs.22,843.70

Amounted  deposited  by  the  petitioner pursuant  to  the  order  of  the  Executing Court dated 08.10.1964. The order was a consent order by which 4 months time was given to the Judgment Debtor to deposit the  entire  amount  with  the  executing court.  The  amounts  deposited  by  the petitioner in 4 months is as under:-

24.10.1964        :      Rs. 3,000/- 11.11.1964        :      Rs. 2,000/- 11.12.1964        :      Rs. 2,000/- 09.01.1965        :      Rs. 2,000/-

Thus, before the date as agreed (7.2.1965) the respondent deposited only Rs. 9,000/-

Rs.9,000.00

Further amount deposited by the Judgment Debtor before the date of auction:-

23.02.1965        :      Rs. 2,000/- 12.03.1965        :      Rs. 2,000/- 15.04.1965        :      Rs. 2,000/- 20.07.1965        :      Rs. 2,000/- 16.08.1965        :      Rs. 2,000/-

Rs. 10,000/-

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Amount outstanding as on 29.10.1965 Rs.3,843.70

A  further  amount  claimed  for  the  first time  in  the  review  petition  to  be deposited on 02.03.1965

Rs. 1,386.00

Amount short deposited Rs.2,457.70

Amount claimed to have been deposited on 13.11.1965 (i.e. after the auction):

Rs.1,720.00

Amount still due Rs.737.70   

It is, thus, pointed out by Mr. Garg that as against

the  decreetal  amount  Rs.  11,666.66  p.  the

defendant/judgment debtor had already paid a sum of Rs.

35,906/-.

Mr.  Sushil  Kumar  Jain,  learned  senior  counsel

appearing  for  the  respondent,  in  the  review  petition

could not dispute the fact that payments were made by the

defendant/judgment debtor from time to time as recorded

above.  These  dates  show  that  the  defendant/judgment

debtor had been making payments, though in installments.

His only submission was that the order of the District

Judge is the subject matter of the appeal pending in the

High  Court.  The  District  Judge,  Saharanpur  has

categorically  recorded  that  the  entire  decree  stands

satisfied. These facts were not noted while giving the

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judgment  dated  20.09.2013,  which  material  alters  the

outcome of the case. As on today the position as per the

order of the District Judge is that the entire decree

stands  satisfied.  Even  if  the  appeal  of  the  plaintiff

succeeds and the High Court finds that some more amount

is due that may not be substantial amount, if at all and,

therefore,  the  defendant/judgment  debtor  can  always  be

directed to pay the amount. In these circumstances, it

would  not  be  feasible  to  sell  the  property  of  the

defendant/judgment  debtor.  We,  thus,  recall  our  order

dated 20.09.2013 and allow the Civil Appeal No. 8398 of

2013  thereby  setting  aside  the  order  of  sale  of  the

property in question.  

Coming  to  the  contempt  petition,  no  doubt  the

contemnors  have  violated  the  orders  of  this  Court  by

selling the property. However, since the properties are

not subject matter of sale now, we are inclined to take a

lenient view of the contempt committed. The contemnors

shall pay a sum of Rs. 50,000/- as compensation to the

plaintiff/decree holder. This amount shall be paid within

four weeks.

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The contempt petition as well as the review petition

stand disposed of in the aforesaid manner.  

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

......................J.      [S. ABDUL NAZEER]

......................J.         [M.R. SHAH]

NEW DELHI; JANUARY 22, 2019.