Judgment­-debtor cannot be allowed to raise objections as to the method of execution in instalments - principle of res judicata under Section 11 CPC is also applicable to execution proceedings - After sale of Entire property - during issuance of sale certificate - JD cannot question entire property sold under rule 64.

Citation

AIR 2021 SUPREME COURT 4756

SUPREME COURT

: AIROnline 2021 SC 845 (From : Calcutta)*

HEMANT GUPTA , J. and V. RAMASUBRAMANIAN , J.

Civil Appeal No. 4557 of 2012, D/- 5 - 10 - 2021

Dipali Biswas and Ors. v. Nirmalendu Mukherjee and Ors.

(A)Civil P.C. (5 of 1908), S.47 - Execution of decree - Power to order property attached to be

sold - Suit for recovery of money - Executing Court should cause proclamation of intended sale

to be drawn up in language of Court - Such proclamation should be drawn up, after issuing

notice to decree-holder and judgment-debtor - A judgment-debtor cannot be allowed to raise

objections as to method of execution in instalments - After having failed to raise issue in four

earlier rounds of litigation - Appellants cannot be allowed to raise issue relating to breach of

O. 21, R. 64 before Supreme Court.

AIR 1977 SC 1789, AIR 1990 SC 119, Distinguished.

 (Paras 24 , 37) 

(B)Civil P.C. (5 of 1908), S.47, S.11 Expln.7 (As inserted by Amendment Act of 1976) - Execution

of decree - Power to order property attached to be sold - Suit for recovery of money - Bar of res

judicata - Provisions of S. 11 had no application to execution proceedings earlier - By insertion

of Explanation 7, S. 11 made applicable to a proceeding for execution of decree - Reference

in S. 11 to any suit, issue or former suit shall be construed as references to a proceeding for

execution of decree, question arising in such proceeding and former proceeding for execution

of that decree - Judgment-debtor despite filing a petition u/S. 47 earlier did not point out reason

for vacant land of extent of 17 decimals not to be divided - Second petition filed by judgment

debtor u/S. 47, thus barred by res judicata.

 (Paras 33 , 37) 

(C)Civil P.C. (5 of 1908), S.47, O.21 R.64 - Execution of decree - Power to order property

attached to be sold - Suit for recovery of money - Judgment-debtor had sufficient opportunity

to object to inclusion of entire property, when execution order was passed - Appellants failed to

point out lay of property, its dimensions and possibility of dividing same into two or more pieces

- After sale of immovable property becomes absolute, Court has to grant a certificate which

bears date and day on which sale became absolute - After all three stages of sale are crossed, final

stage of delivery of possession comes - At such final stage, appellants raised objection relating

to power to order property attached to be sold - Appellants were aware of fact that property

in entirety was included in proclamation of sale - Appellants cannot be allowed to raise issue

relating to breach of O. 21 R. 64 before Supreme Court.

 (Paras 36 , 37) 

Cases Referred Chronological Paras

AIR 1990 SC 119 (Disting.) 22, 23, 33

AIR 1977 SC 1789 (Disting.) 20, 22, 33

Astonished at the five rounds of litigation initiated by a litigant(and his successors) over five decades to stall the execution of a civil decree, the Supreme Court remarked that it was a fit case to be included in the law school syllabus as a study material for students to get equipped with various provisions of the Civil Procedure Code relating to execution.

"...the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution", the judgment delivered by a bench comprising Justices Hemant Gupta and V Ramasubramanian observed.

The judgment authored by Justice Ramasubramanian is interspersed with several witty remarks on the nature of litigation. The party managed to disingenuously invoke the provisions of the Civil Procedure Code at various stages to stall the execution proceedings in a decree passed in a money suit filed in 1971 for recovery of a sum of Rs 3000.

"..this appeal arises out of the fifth round of litigation at the stage of execution of a simple money decree and we wish that it is the knock out round", the Supreme Court judgment stated at the outset.

The judgment compared the party to the "tireless Vikramaditya, who made repeated attempts to capture 'Betal'".

Background facts

The suit was filed in 1971 against one Sasadhar Biswas (predecessor of appellants before the Supreme Court) in 1971 for recovering an amount of Rs.3000. It was decreed ex-parte in 1974.

Execution proceedings were filed in 1975 against the property of Biswas. After sale proclamation was filed against his property measuring approximately 7450 Sq.ft, Biswas filed an application to set aside the sale proclamation alleging "material irregularity and fraud" in issuing the proclamation. It got dismissed.

Auction sale was held in 1979 for a bid amount of Rs 5500.After this the first round of litigation started. Biswas filed an application under Order XXI, Rule 90 read with Section 152 of the Code praying for setting aside the auction sale on the ground of irregularities in the sale proclamation.

While this application was pending, Biswas entered into a compromise with the auction purchasers. But he did not deposit the entire amount. However, the Court closed the execution proceedings recording full satisfaction. Against this, auction purchasers filed application. That round of litigation got stretched to the Supreme Court over a period of nearly 13 years. The end result was that the auction sale was confirmed.

Without giving up, the litigant next filed a fresh suit to set aside the auction sale as void. It got dismissed as abated. In parallel, Biswas filed revision petition challenging the sale certificate issued to the auction purchasers, which ultimately got dismissed by the High Court after seven years in 2001.

Meanwhile, Biswas had constructed a building in the suit property. In 2002, the trial court allowed an application filed by the auction purchasers seeking delivery of possession of the property after demolishing the building.

By this time, Biswas expired, and it was upon his legal representatives to continue the challenge. They appealed against the order allowing delivery of possession.

That also got stretched to the Supreme Court, and ended with the SLP getting dismissed in 2006.

After that, the legal representatives filed a fresh application under Section 47 of the Code of Civil Procedure on the ground that the sale did not follow the mandate of Rule 64 of the Order XXI of the CPC. Rule 64 states, in essence, that only that portion of the property should be sold so as to satisfy the decree amount.

The Supreme Court described this development in the following words :

"Not to be put off by repeated failures, the appellants herein, like the tireless Vikramaditya, (who made repeated attempts to capture 'Betal') started the present round (hopefully the final round), by moving a petition in Miscellaneous Case No.15 of 2006 before the executing court under Section 47 of the Code, on the ground that the mandate of Order XXI Rule 64 was not followed in the auction and that therefore a jurisdictional error has crept in and that the same could be corrected at any point of time and at any stage of the proceeding".

Ultimately that got dismissed at the stages of trial court, appellate court and the High Court, and the matter was taken to the Supreme Court. The Supreme Court dismissed the civil appeal after a pendency of nearly 9 years.

Supreme Court's analysis

On merits, the Supreme Court dismissed the matter stating the following reasons :

1. The objection as regards Rule 64 was not raised at earlier rounds, and was raised for the first time in 2006.

2. The party had sufficient opportunities to raise the dispute at earlier rounds.

3. In any case, the property at hand was only 7450 square feet, incapable of division.

4. The principle of res judicata under Section 11 CPC is also applicable to execution proceedings.

Justice Ramasubramanian said in the judgment that the appellant thought of this ground only after exhausting "the gun­powder available under Order XXI, Rule 90".

"In other words, the appellants have now exhausted almost all provisions available to a judgment­-debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution".

Judgment debtor cannot be allowed to raise objections to execution in instalments

While concluding, the judgment also made this significant observation :

"A judgment­-debtor cannot be allowed to raise objections as to the method of execution in instalments. After having failed to raise the issue in four earlier rounds of litigation, the appellants cannot be permitted to raise it now"

Case Details

Case Title : Dipali Biswas and others versus Nirmalendu Mukherjee and others | C.A 4557/2012

Citation : LL 2021 SC 538