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Dipali Biswas & Ors Vs Nirmalendu Mukherjee & Ors: Objections Cannot Be Raised In Instalments

Rheaa Nair ,
  22 October 2021       Share Bookmark

Court :

Brief :

Citation :

Coram
J. Hemant Gupta
J. V. Ramasubramanian

Parties
Appellant- Dipali Biswas & Ors.
Respondent- Nirmalendu Mukherjee & Ors

Subject

The executing court had dismissed the application if the appellants filed under Section 47 of the Civil Procedure Code (CPC). This has been affirmed by the High Court. Challenging these orders, the appellants have reached the Supreme Court, in an auction dispute that began half a decade ago. The appeal has arisen in the fifth round of litigation.

Overview

  • The present appeal is on its fifth round of litigation. It began with Ms Rama Devi filing a suit for recovery of money in the District Munsif Court. The suit was decreed ex parte, and the defendant was ordered to pay the amount in six equal instalments. The decree was not honoured and the decree holder filed an execution petition for the sale of some land. The highest bidders submitted money to the court.
  • The judgement debtor filed an application praying for the auction sale to be set aside on the ground of irregularities in sale proclamation. While this was pending, the judgment debtor entered into a compromise with the highest bidders in the auction. The compromise allowed the petitioner debtor to pay the bidders the auction sum before a particular date. If the money was not paid, the auction would be executed in favour of the bidder.
  • At the deadline, the judgment debtor only deposited a part of the amount deposited by the bidders.The court dismissed the case. Within 4 days, the executing court again passed an order recording the full satisfaction of the execution. The auction purchasers in response filed an application for recalling this order as it was allegedly passed behind their back.
  • The application was dismissed. This dismissal was challenged by the purchasers who filed for a revision in the High Court. The court held that the judgment debtor had failed to honour the commitment made in the memo, and did not deposit the entire amount paid by the purchasers, and the sale should be confirmed in favour of the purchasers.
  • A special leave petition was filed against that order which was dismissed. The second round of litigation was the judgement debtor filing a suit in district Munsif praying auction sale to be declared void, but it was dismissed. The auction purchasers had filed a petition for the issue sale of certificate, which was allowed.
  • The 4th round began with the auction purchasers filing an application seeking the delivery of the possession. The executing court allowed this. In the meantime, judgment debtor had constructed a building on the land sold and the executing court asked the building to be demolished. The order of possession was challenged by the appellants, the legal representatives of judgement debtor. This order was rejected by the executing court, High Court, and the Supreme Court.
  • This has led to the current round of litigation, where the appellants are trying to contend that the mandate of Order XXI Rule 64 was not followed in the auction and therefore a jurisdictional error was committed. This too was dismissed by the executing court; the order was challenged in the High Court which was dismissed and thus the appeal has reached the Supreme Court.

Relevant Provisions

Order XXI Rule 64 – Allows an executing court to order any property or portion of property liable to sale, can be sold and the proceeds thereof will be paid to the party entitled under the decree to receive it.

Section 47 of Civil Procedure Code- Questions to be determined by the court executing a decree.

Issues

  • Whether Order XXI Rule 64 is applicable to the case, and a jurisdictional error has been committed in the auction process?

Analysis

  • The court notes that despite having the opportunity to raise the objection relating to Rule 64 earlier, the appellants never brought it up in the first four rounds of litigation.
  • The executing court has been fair to the judgment debtor. The debtor had a chance to object to the inclusion of the entire property in the auction, but he did not point out how to divide the property.
  • The court recounted the strategies used in each round of litigation. The appellants have exhausted all paths available to the judgment debtor to stall the execution of the property. The claim of the appellant has been termed a ‘bogey’ by the court.
  • The court did not allow the appellants to raise the issue, and gave the some of the following reasons for it. Firstly, the judgment debtor cannot raise objections related to method of execution of instalments. After failing to raise this issue in four rounds of litigation, it can’t be raised now. Secondly, the judgment debtor has already filed a petition under Section 47 of the CPC, thus the current appeal is barred by res judicata. Thirdly, the High Court’s order that no party will have claim against the applicant over the property after the purchase date, has attained finality.
  • Therefore, the claim on the basis of Rule 64 has been rightly rejected by the High Court. The court declares the present appeal as devoid of merits, and dismissed.

Conclusion

The appellants, who are the legal representatives of the judgment debtor, have exhausted the provisions under the CPC attempting to stall the execution of the auction in favour of the purchasers. In the present litigation, they have brought up an issue which was not conveyed in the four previous rounds of litigation. The Supreme Court has noted this and further stated that the present appeal is barred by res judicata, as one of the many cases filed by the judgment debtor was also filed under Section 47 of the CPC. This case had a decisive judgment given by the High Court. In its observations, the Supreme Court has remarked that the present case can used as an example in law schools to show the utilisation of various provisions of the CPC in the same case.

Click here to download the original copy of the judgement

Questions

  • On what grounds was the fifth round of appeals instituted?
  • In whose favour was the case decided?
 
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