SUKUMAR DEversusBIMALA AUDDY & ORS.

                       [2013) 12 S.C.R. 198


A                         SUKUMAR DE
                                 v.
                    BIMALA AUDDY & ORS.
        (Special Leave Petition (Civil) No. 25797 of 2004)
                       OCTOBER 28, 2013
B
         [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

        CODE OF CIVIL PROCEDURE, 1908:

c       0.21, r.89 - Application to set aside sale, on deposit -
   Order of High Court affording the judgment-debtors one more
   opportunity to deposit the amount - Challenged by auction-
   purchaser - Held: Immediately after the order of tfigh Court,
  judgment-debtors had deposited the amount -- Exercise of
D discretion by High Court cannot be found to be erroneous nor
   contrary to law so as to warrant interference in exercise of
  jurisdiction under Art. 136 of the Constitution -- There is no
  substantial question of law - Constitution of Jndi, 1950 -
  Art.136.
E       In the case of a decree for a sum of Rs.6,600/- passed
   in the year 1967, the property of the judgment debtor
  (respondent no. 4) was put up on auction on July, 1970;
  and the bid of the petitioner in a sum of Rs.1.5 lakhs being
  the highest, the auction sale was confirmed in his favour
F on 9. 7.1990. Respondent No. 4 filed an application
  requesting the executing court to intimate the amount to
  be deposited so that he could file application under 0. 21,
  r. 89 of CPC. The application was rejected. The High
  Court set aside the order of the executing court and
G directed the executing court to intimate the amount to the
                                                                   I
  judgment debtors. However, in another revision petition,
  the High Court, by the impugned order passed on
  8.6.2004, gave one more opportunity to the judgment-
  debtor to pay decretal amount with interest as upto that
H                              198
     SUKUMAR DE v. BIMALA AUDDY & ORS.                       199


stage the controversy regarding actual payment had not                A
been settled.

    Dismissing the special leave petition filed by the
auction purchaser, the Court

    HELD:                                                             B

    In the circumstances, exercise of discretion by the
High Court cannot be found to be erroneous nor
contrary to law so as to warrant interference of this Court
under Art. 136 of the Constitution. Further, there is no              c
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.
In the circumstances, they should not be made to lose
the property. [para 8] [204-E-F]                            D

    CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
25797 of 2004.

     From the Judgment and Order dated 08.06.2004 of the
 High Court at Calcutta in Civil Order No. 2719 of 1992.              E

      Rana Mukherjee, Mridula Ray Bharadwaj, Gopal Jha for
 the Petitioner.

     Krishnan Venugopal, Uttpal Majmudar, B.P. Yadav, Sarla
 Chandra for the Respondents.                                         F

     The Judgment of the Court was delivered by

      A.K. SIKRI, J. 1. This case has a chequered history.
 However, we do not find it necessary to narrate all the events       G
 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       H
    200      SUPREME COURT REPORTS                 (2013] 12 S.C.R.


A 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
B proceedings which was bought by the petitioners herein.

         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
C was instituted by one Sm!. 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
D 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
E 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
F 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
G challan of one-fourth of the bid amount i.e. Rs. 37,500/-. On the
  very next day, one of the judgment debtors namely Respondent
  No. 4 herein filed an application in the execution case for
  iniimation as to how the decreetal amount be deposited. This
  petition was however, rejected by the Executing Court on
H 8.8.1990. Against this order, Revision Petition was filed before
      SUKUMAR DE v. BIMALA AUDDY & ORS.                   201
                [A.K. SIKRI, J.]
the High Court under Section 115 of the Code of Civil            A
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.
                                                                   B
      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. C
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, D
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 same. The High Court noted the E
 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 th is basis, the High F
 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 G
 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 H
    202       SUPREME COURT REPORTS               (2013] 12 S.C.R.


A   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.
B
       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
C had to pay a sum of Rs. 1.14 lakhs. Direction was given to the
  JD's to deposit the amount. This order was challenged by the
  judgment debtors' questioning the calculations made and
  submitted that decretal am.punt 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
D 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
E 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
F 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
G 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:

H         "Accordingly we dispose of the Revisional application by
   SUKUMAR DE v. BIMALA AUDDY & ORS.                    203
             [A.K. SIKRI, J.)
   modifying the order passed by the learned executing Court A
   on 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 B
    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 c
    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
                                                                 0
    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 E
     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:                                                          F

    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     G
    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 debtor has filed the application requesting the     H
    204        SUPREME COURT REPORTS                (2013] 12 S.C.R.


A           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
B          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.
c          42,055.871-. 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
D
           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
E aforesaid manner cannot be found to be erroneous and contrary
  to law which warrants interference 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
F 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.
    R.P.                                            SLP dismissed.