DIPALI BISWAS & ORS. versus NIRMALENDU MUKHERJEE & ORS. on 5 October 2021

216

SUPREME COURT REPORTS

[2021] 10 S.C.R.

A

DIPALI BISWAS & ORS.

v.

NIRMALENDU MUKHERJEE & ORS.

(Civil Appeal No. 4557 of 2012)

BOCTOBER 05, 2021

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Code of Civil Procedure, 1908: Or.21 r. 64 – Execution ofmoney decree – Attachment of 117 decimal of land (app. 7450 sq.feet) – Sale proclamation – Auction sale – Issuance of SaleCCertificate – Application by auction purchaser seeking delivery ofpossession allowed by executing court – However, meanwhilejudgment debtor constructed building on the land sold – Executingcourt ordered demolition – The said order attained finality –Judgment debtor started fresh round of litigation by moving petitionDbefore the executing court under s.47 of the Code, on the groundthat the mandate of Or.XXI r.64 was not followed in the auction andthat therefore a jurisdictional error has crept in – Executing courtdismissed the petition – High Court dismissed revision by judgmentdebtor on the ground that the issue, never having been raised earlier,cannot be allowed to be raised at this distance of time – AggrievedEjudgment debtor filed instant appeal – Held: The sequence of eventswould show that the judgment debtor had sufficient opportunity toobject to the inclusion of the entire property when an order waspassed under Or.XXI, r.54 – Subsequently, he had an opportunityto object to the inclusion of the whole of the property, by takingFadvantage of the amended clause (a) of sub rule (2) of r.66 of OrderXXI, which speaks about a part of the property that would besufficient to satisfy the decree – But the judgment debtor despitefiling a petition under s.47 on 02.09.1975, did not point out howthe property being a vacant land of an extent of 17 decimals couldhave been divided or its layout, its dimensions on all sides and theGpossibility of dividing the same into two or more pieces, with a viewto sell one or more of those pieces for the realisation of the decreedebt – s.65 of the Code says that, “where immovable property issold in execution of a decree and such sale has become absolute,the property shall be deemed to have vested in the purchaser fromHthe time when the property is sold and not from the time when the sale becomes absolute” – The sale of a property becomes absoluteunder Or.XXI, r.92(1) after an application made under rr.89, 90 or91 is disallowed and the court passes an order confirming the same– After the sale of an immovable property becomes absolute in termsof Or.XXI, r.92(1), the Court has to grant a certificate under r. 94bearing the date and the day on which the sale became absolute –Thus a conjoint reading of s.65, Or.XXI, r.92 and Or. XXI, r.94 wouldshow that it passes through three important stages (other than certainintervening stages), conduct of sale; sale becoming absolute; andissue of sale certificate – After all these three stages are crossed,the fourth stage of delivery of possession comes under r.95 of Or.XXI– It is at this fourth stage that the appellants have raised the objectionrelating to Or.XXI, r.64 – It is not as if the judgment debtor was notaware of the fact that the property in entirety was included in theproclamation of sale – Therefore, the claim on the basis of Or.XXI,r. 64 was rightly rejected by the High Court.

Conclusion

Code of Civil Procedure, 1908: s.11 – Applicability of, toexecution proceedings – Original judgment debtor filed a petitionunder s.47, way back on 02.09.1975 – Second petition under s.47thus will be barred by res judicata – Before Act 104 of 1976 cameinto force, there was one view that the provisions of s.11 of theCode had no application to execution proceedings – But under Act104 of 1976 Explanation VII was inserted under s.11 and it saysthat the provisions of this Section shall apply to a proceeding forthe execution of a decree and reference in this Section to any suit,issue or former suit shall be construed as references to a proceedingfor the execution of the decree, question arising in such proceedingand a former proceeding for the execution of that decree – Resjudicata.

Dismissing the appeal, the Court

HELD: 1.1 Under Order XXI, Rule 66 (1) the executingcourt should cause proclamation of the intended sale to be drawnup in the language of the court. Under sub rule (2) of Rule 66 ofOrder XXI, such proclamation should be drawn up after notice tothe decree holder and the judgment-debtor. Two significantchanges were made to Order XXI, Rule 66 by Act 104 of 1976w.e.f. 01.02.1977. Both these changes were made to sub rule (2)

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Aof Rule 66. One of the changes was the insertion of the words“or where a part of the property would be sufficient to satisfy thedecree, such part” in clause (a) of sub rule (2). The second changewas the insertion of two provisos under sub rule (2). The firstproviso under sub rule (2) of Rule 66 of Order XXI gives adiscretion to the court not to give notice under Order XXI, RuleB66 to the judgment-debtor, if a notice for settling the terms of theproclamation had been given to the judgment-debtor by meansof an order under Rule 54. Rule 54 of Order XXI prescribes themethod of attachment of immovable property. Sub rule (1A) ofRule 54, also inserted by Act 104 of 1976, mandates that theCprohibitory order under sub rule(1) shall require the judgment-debtor to attend court on a specified date to take notice of thedate to be fixed for settling the terms of the proclamation of sale.This is why the first proviso to sub rule (2) of Rule 66 gives adiscretion to the court to dispense with a second notice underOrder XXI, Rule 66(2). [Paras 24, 25, 27 and 28][288-C-D;D229-E, G-H; 230-A-B]

1.2 It is seen that the appellants have filed as additionaldocument the extract of relevant orders passed in MoneyExecution Case No.2 of 1975 by the District Munsif Court,Bongaon. This document reveals that on 10.01.1975, theEexecuting court ordered the issue of notice of attachment underOrder XXI, Rule 54 of the Code. It was only thereafter that thecourt directed on 16.07.1975, the issue of sale proclamation underOrder XXI, Rule 66. Thereafter, the judgment-debtor filed apetition under Section 47 of the Code on 02.09.1975 (this was the Ffirst petition under Section 47, while the appeal on hand arises outof the second petition under Section 47). The executing court, atthe instance of the judgment-debtor also granted stay of furtherproceedings on 26.09.1975. But it is not clear as to when thesaid petition under Section 47 was disposed of. However it isclear from the order passed on 22.04.1978 that the decreeGholder was directed to take further steps. [Paras 29, 30 and31][230-B-E]

1.3 Even after directing the publication of the saleproclamation in the newspaper, the executing court was morethan fair to the judgment-debtor, as could be seen from the orderHpassed on 16.03.1979. On the said date the executing court found

that in the newspaper publication, the case number was wronglymentioned. Therefore, the court directed the issue of fresh saleproclamation and fresh publication. It is only thereafter that thejudgment-debtor moved a petition on 30.05.1979 forpostponement of the auction. It was rejected and the courtproceeded with the auction. The decree holder himselfparticipated in the auction after getting permission from the court.However, it is only the third parties who succeeded in gettingthe sale confirmed. [Para 32][230-F-G]

2. The sequence of events would show that the judgment-debtor had sufficient opportunity to object to the inclusion of theentire property when an order was passed under Order XXI, Rule54. Subsequently he had an opportunity to object to the inclusionof the whole of the property, by taking advantage of the amendedclause (a)of sub rule (2) of Rule 66 of Order XXI, which speaksabout a part of the property that would be sufficient to satisfy thedecree. But the judgment-debtor despite filing a petition underSection 47 on 02.09.1975, did not point out how the propertybeing a vacant land of an extent of 17 decimals could have beendivided. The notice of attachment under Order XXI, Rule 54 wasordered on 10.01.1975 and the sale proclamation under OrderXXI, Rule 66 was directed to be issued on 16.07.1975. It is onlythereafter that the first petition under Section 47 was filed on02.09.1975. [Para 33][230-H; 231-A-C]

3.1 The objection relating to Order XXI, Rule 64 has beenraised by the appellants for the first time in the 5[th] round oflitigation in execution. In the 1[st] round, the appellants exhaustedthe gun-powder available under Order XXI, Rule 90, by takingrecourse to a compromise with the auction purchasers, afteralleging material irregularity in the conduct of the auction. The1[st] round which commenced in 1979 came to an end in 1992 withthe dismissal of SLP. In the order of the High Court dated20.12.1990 that was under challenge in the said SLP, the HighCourt made it clear that none of the parties shall have any claimwhatsoever as against the auction purchaser in respect of thepurchased property. [Para 34][231-D-E]

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A3.2 The 2[nd] round was kick-started with a suit for adeclaration that the auction sale was void. This is despite theexpress bar of a separate suit, under Section 47(1) of the Code.But the 2[nd] round got aborted with the dismissal of the suit due toabatement. The 3[rd] round started with objections to the issue ofsale certificate and it came to an end in the year 2001. The 4[th]Bround commenced when the auction purchasers moved theexecuting court for delivery of possession. Delivery was orderedby the executing court on 15.03.2002. This round came to a closewith the dismissal of a SLP in the year 2005 and a review petitionin the year 2006, arising out of the dismissal of a revision petitionCchallenging the order of the executing court for delivery ofpossession. It is only thereafter that the 5[th] round of litigationwas started by the appellants by filing a petition under Section 47and raising the bogey of “jurisdictional error” on account of non-compliance with the mandate of Order XXI, Rule 64. In otherwords, the appellants have now exhausted almost all provisionsDavailable to a judgment-debtor to stall execution. [Paras 35 and36][231-F-H; 232-A-B]

4. The appellants cannot be allowed to raise the issuerelating to the breach of Order XXI, Rule 64 for the followingreasons:-E

(i) A judgment-debtor cannot be allowed to raise objectionsas to the method of execution in instalments. After having failedto raise the issue in four earlier rounds of litigation, the appellantscannot be permitted to raise it now;F(ii) The original judgment-debtor himself filed a petition

F(ii) The original judgment-debtor himself filed a petitionunder Section 47, way back on 02.09.1975. What is on hand is asecond petition under Section 47 and, hence, it is barred by resjudicata. Before Act 104 of 1976 came into force, there was oneview that the provisions of Section 11 of the Code had noapplication to execution proceedings. But under Act 104 of 1976GExplanation VII was inserted under Section 11 and it says thatthe provisions of this Section shall apply to a proceeding for theexecution of a decree and reference in this Section to any suit,issue or former suit shall be construed as references to aproceeding for the execution of the decree, question arising in H

such proceeding and a former proceeding for the execution ofthat decree;

(iii) Even in the 5[th] round, the appellants have not pointedout the lay of the property, its dimensions on all sides and thepossibility of dividing the same into two or more pieces, with aview to sell one or more of those pieces for the realisation of thedecree debt;

(iv) The observations in the order of the High Court dated20.12.1990 in C.O.No.2487 of 1987 that, “none of the parties shallhave any claim whatsoever as against the applicant in respect ofthe purchased property which shall be deemed to be his absoluteproperty on and from the expiry of 15[th] December, 1980”, hasattained finality;

(v) Section 65 of the Code says that, “where immovableproperty is sold in execution of a decree and such sale has becomeabsolute, the property shall be deemed to have vested in the purchaserfrom the time when the property is sold and not from the time whenthe sale becomes absolute”. The sale of a property becomesabsolute under Order XXI, Rule 92(1) after an application madeunder Rule 89, Rule 90 or Rule 91 is disallowed and the courtpasses an order confirming the same. After the sale of animmovable property becomes absolute in terms of Order XXI,Rule 92(1), the Court has to grant a certificate under Rule 94.The certificate has to bear the date and the day on which the salebecame absolute. Thus a conjoint reading of Section 65, OrderXXI, Rule 92 and Order XXI, Rule 94 would show that it passesthrough three important stages (other than certain interveningstages). They are, (i) conduct of sale; (ii) sale becoming absolute;and (iii) issue of sale certificate. After all these three stages arecrossed, the 4[th] stage of delivery of possession comes under Rule95 of Order XXI. It is at this 4[th] stage that the appellants haveraised the objection relating to Order XXI, Rule 64. It is not as ifthe appellants were not aware of the fact that the property inentirety was included in the proclamation of sale. Therefore, theclaim on the basis of Order XXI, Rule 64 was rightly rejected bythe High Court. [Para 37][232-B-H; 233-A-D]

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ATakkaseela Pedda Subba Reddi vs. PujariPadmavathamma & Ors. (1977) 3 SCC 337 : [1977] 3SCR 692; Ambati Narasayya vs M. Subha Rao & Anr.(1989) Supp. 2 SCC 693 : [1989] 1 Suppl. SCR 451 –distinguished.

Case Law Reference

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[1977] 3 SCR 692distinguishedPara 20[1989] 1 Suppl. SCR 451distinguishedPara 22

CIVIL APPELLATE JURISDICTION: Civil Appeal No.4557 of2012.CFrom the Judgment and Order dated 28.03.2008 of the High Courtof Calcutta in C.O. No.1115 of 2007.

Rauf Rahim, Ali Asgar Rahim, Advs. for the Appellants.

Raja Chatterjee, Piyush Sachdev, S. P. M. Tripathi, V. K. Shukla,DDhruv Toliya, Sugam Mishra, Ms. Swagoti Batchas, Satish Kumar, Advs.for the Respondents.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.E1. Challenging the order of the High Court confirming the orderof the Executing Court dismissing their application under Section 47 ofthe Code of Civil Procedure, 1908 (hereinafter referred to as the‘Code’), the legal representatives of the judgment-debtor have come upwith the above appeal. Incidentally, this litigation is exactly half a centuryold (it started with a suit filed in 1971) and this appeal arises out of theFfifth round of litigation at the stage of execution of a simple money decreeand we wish that it is the knock out round.

2. We have heard Mr. Rauf Rahim, learned counsel for theappellants, and Mr. Raja Chatterjee, learned counsel appearing for therespondent nos.1-7/auction purchasers.G

3. One Ms. Rama Rani Devi, filed a simple suit for recovery ofmoney in Money Suit No.16 of 1971 on the file of the District MunsifCourt, Bongaon, District 24 Parganas, West Bengal, against one SasadharBiswas, for recovery of a sum of Rs.3000/-. The suit was decreed exparte on 25.07.1974, directing the defendant to pay the decretal amountHin six equal instalments with a default clause.

4. Since the decree was not honoured, the decree holder filed anexecution petition in Execution Case No.2 of 1975, praying for theattachment and sale of 17 decimal of land (approximately about 7450Sq.ft.) in Plot No.26/159 under Khatian No.2555 of Mouza Bongaon. Itappears that a sale proclamation was issued by the executing court on16.07.1975 after which Sasadhar Biswas, the Judgment-debtor filed anapplication in Miscellaneous Case No.151 of 1975 assailing the saleproclamation issued by the executing court, on the ground of materialirregularity and fraud. But the same was dismissed on 03.09.1975.

5. An auction sale was held on 30.05.1979, in which two brothersby name, Sachindra Nath Mukherjee and Dulal Kanti Mukherjee becamethe highest bidders, they having offered a sum of Rs.5500/-, as the highestbid amount. The highest bidders also deposited the money into court.

First round

6. Mr. Sasadhar Biswas, the judgment-debtor then filed anapplication on 27.06.1979 under Order XXI, Rule 90 read with Section152 of the Code praying for setting aside the auction sale on the groundof irregularities in the sale proclamation. During the pendency of thispetition in Miscellaneous Case No.47 of 1979, the judgment-debtorSasadhar Biswas entered into a compromise on 19.07.1980, not with thedecree holder but with the auction purchasers. The memo of compromisereads as follows:- “The petitioner and the auction purchaser Opp. party dosettle the suit mutually in the following manner.

1) If the petitioner debtor pays the entire money due to the auctionpurchaser opposite part in cash within 15[th] December or if hedeposits it in their credit in the court and the auction shall be revokedand the original execution case shall be disposed on fullsatisfaction.

2) Otherwise that is if the petitioner debtor does not pay the entiremoney due to the auction purchaser opposite party in cash within15[th] December on deposits that amount in court within that datethen the said auction shall remain effective and this present suitshall be dismissed with costs.

Hence it is prayed that according to the contents of thissolenama and for compliance with the conditions of the solenamathe final date of this suit may be kept on 16.12.80 on the expiry ofthe 15[th] December.”

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A7. It is relevant to point out that the amount of money depositedby the auction purchasers into court was Rs.5500/-, but the decree debtwas around Rs.3360/-. Though the compromise memo entered into bythe judgment-debtor with the auction purchasers did not refer to thedecree debt, but repeatedly mentioned the words, “entire money due tothe auction purchasers”, the judgment-debtor admittedly deposited onB15.12.1980, only a sum of Rs.3700/-, purportedly on the basis of thecalculation provided by the court officer in terms of Order XXI, Rule 89of the Code.

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8. Since the deadline for payment of the entire money due to theauction purchasers expired on 15.12.1980 and also since the judgment-Cdebtor deposited only a sum of Rs.3700/-, as against the amount ofRs.5500/- deposited by the auction purchasers, the executing courtdismissed the application under Order XXI, Rule 90 in MiscellaneousCase No.47 of 1979.

9. But within four days, the executing court again passed an orderDon 20.12.1980 recalling the order dated 16.12.1980 and recording fullsatisfaction in the execution. Shocked at this order, the auction purchasersfiled an application on 22.12.1980 for recalling the order dated 20.12.1980,passed purportedly behind their back. This application was dismissed bythe executing court on 12.09.1981. Challenging the said order datedE12.09.1981, passed by the executing court, the auction purchasers fileda revision in C.R.No.3577 of 1981 on the file of the High Court. TheHigh Court allowed the revision by an order dated 21.06.1983 andremanded the matter back to the executing court, for re-hearing theapplication of the auction purchasers for recall of the order dated20.12.1980.F

10. The executing court passed a fresh order dated 11.07.1987rejecting the application of the auction purchasers on merits, but thisorder was set aside by the High Court in a revision in C.O.No.2487 of1987, by an order dated 20.12.1990. By this order the High Court heldthat the judgment-debtor failed to honour the commitment made in theGcompromise memo to deposit the entire amount due to the auctionpurchasers and that therefore the auction sale should be confirmed infavour of the auction purchasers. It may be relevant to extract ClauseNo.4 of the operative portion of the order of the High Court in C.O.No.2487 of 1987 dated 20.12.1990. It reads as follows:- H “xxx xxx

4. None of the parties shall have any claim whatsoever as againstthe applicant in respect of the purchased property which shall be deemedto be his absolute property on and from the expiry of 15[th] December,1980.”

11. Thereafter, a mention was made before the learned judge, onbehalf of the counsel for the judgment-debtor seeking recall of the orderin C.O.No.2487 of 1987 on the ground that the counsel was not presentat the time of disposal of the revision petition. Therefore, the leanedJudge again heard the matter and passed a detailed order dated08.08.1991, reiterating his earlier order. A special leave petition filedagainst the order dated 08.08.1991, in SLP(C)No.18092 of 1991 wasdismissed by this Court on 24.02.1992. The judgment-debtor moved apetition for review before this Court but the same was also dismissed on12.08.1992. Thus, the 1[st] round of litigation kicked off with an applicationunder Order XXI, Rule 90, in the year 1979, came to an end in 1992.

Second Round

12. The judgment-debtor then started the 2[nd] round by filing a suitin suit No.249 of 1992 on the file of the District Munsif, Bongaon, for adeclaration that the auction sale is void but the said suit was dismissedas abated, on 02.12.1992.

Third Round

13. In the meantime, the auction purchasers filed petitions for theissue of sale certificate and the judgment-debtor filed a petition underOrder XXI, Rule 29 for stay of execution proceedings. But the applicationof the judgment-debtor was dismissed and the applications of the auctionpurchasers were allowed by the executing court by an order dated31.01.1994. A direction was given for the issue of a sale certificate tothe auction purchasers in terms of Order XXI, Rule 94. Accordingly, asale certificate was issued on 08.02.1994. The sale certificate was alsoduly registered.

14. Challenging the order dated 31.01.1994 passed by the executingcourt directing the issue of sale certificate, the judgment-debtor filed arevision in C.O.No.1232 of 1994 on the file of the High Court. Thoughthe High Court entertained the revision and initially granted a stay offurther proceedings in the execution, the High Court eventually dismissedthe revision petition by an order dated 05.09.2001 holding that the earlierorder in C.O.No.2487 of 1987 dated 08.08.1991 had already clinchedthe issue. With this order, the third round came to an end.

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AFourth Round

15. The 4[th] round began with an application by the auctionpurchasers seeking delivery of possession. This application was allowedby the executing court on 15.03.2002, directing delivery to be effectedby 16.04.2002. Since the judgment-debtor had, in the meantime,Bconstructed a building on the land sold in execution of the decree, theexecuting court directed the building so constructed illegally, to bedemolished.

16. The order of the executing court for delivery of possessionwas challenged by the appellants herein (the legal representatives ofCthe judgment-debtor) in a Civil Petition No.106 of 2002 before theAdditional District Judge, Barasat. The same was dismissed on26.02.2003. This order was challenged before the High Court inC.O.No.1276 of 2003, but the same was dismissed by the High Court byan order dated 11.02.2005 pointing out that the issue has already beenclinched by the previous orders. The special leave petition SLP(C)DNo.12925 of 2005 filed against the said order, was dismissed by thisCourt on 18.07.2005. The petition seeking review of the said order wasalso dismissed by this Court on 10.01.2006. Thus, the fourth round oflitigation came to a close.

Fifth Round (present round)E

17. 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 movinga petition in Miscellaneous Case No.15 of 2006 before the executingcourt under Section 47 of the Code, on the ground that the mandate ofFOrder XXI Rule 64 was not followed in the auction and that therefore ajurisdictional error has crept in and that the same could be corrected atany point of time and at any stage of the proceeding. This petition filedon 10.02.2006 was dismissed by the executing court by an order dated20.01.2007.

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G18. Challenging the said order dismissing their application underSection 47, the appellants filed a revision in C.O. No.1115 of 2007 on thefile of the High Court. This revision was dismissed by the High Court byan order dated 28.03.2008, on the ground that the issue, never havingbeen raised earlier, cannot be allowed to be raised at this distance oftime. It is against the said order of the High Court dated 28.03.2008, inH

C.O.No.1115 of 2007 that the legal representatives of the judgment-debtor have come up with the above appeal.

Contentions and our analysis

19. The only mantra, by the recitation of which, the appellantshope to succeed in this half-a-century old litigation, is Order XXI, Rule64 of the Code. This provision enables an executing court to order “thatany property attached by it and liable to sale or such portion thereofas may seem necessary to satisfy the decree, shall be sold and thatthe proceeds of such sale or a sufficient portion thereof shall bepaid to the party entitled under the decree to receive the same”.

20. It is the contention of the learned counsel for the appellantsthat Order XXI, Rule 64 casts not a discretion, but an obligation, to sellonly such portion of the property as may be sufficient to satisfy thedecree. In support of this proposition, the learned counsel for the appellantscited a few decisions, which we shall now deal with. In TakkaseelaPedda Subba Reddivs. Pujari Padmavathamma & Ors[1], this Courtheld that the, “executing court derives jurisdiction to sell propertiesattached, only to the point at which the decree is fully satisfied”,and that the words, “necessary to satisfy the decree”, clearly indicatethat no sale can be allowed beyond the decretal amount mentioned inthe sale proclamation. This Court went further to hold that the issueflowing out of Order XXI, Rule 64 goes to the very root of the jurisdictionof the executing court and that therefore the fact that an objection in thisregard was not raised before the executing court is not sufficient to puthim out of court.

21. But the aforesaid decision arose out of a case where thedecretal amount for which the properties were to be sold was mentionedin the warrant of sale and sale proclamation as Rs.16,715/-. The lands intwo villages namely Devanoor and Gudipadu were brought to sale.The sale of lands in one village alone fetched Rs.16,880/-. Yet theexecuting court proceeded to sell the lands in Gudipadu also. It is inthat context that this Court held as aforesaid.

22. The decision in Ambati Narasayya vs M. Subha Rao &Anr[2],while following T.P. Subba Reddi(supra), went a step further andheld that if the property is large and the decree to be satisfied is small, 1 (1977) 3 SCC 337

2 (1989) Supp. 2 SCC 693

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Athe court must bring only such portion of the property, the proceeds ofwhich would be sufficient to satisfy the decree debt and that it isimmaterial whether the property is one or several.

23. But the decision in Ambati Narasayya (supra) also arose outof a particular context. The land that was sold in Ambati NarasayyaB(supra) was of the extent of 10 acres and it was sold for Rs.17,000/- forthe satisfaction of a claim of Rs.2400/-. The land of the extent of 10acres is certainly large enough and is capable of division. But in the caseon hand, the extent of land is only 17 decimals, working out to (7450Sq.ft.).

C24. It must be pointed out at this stage that under Order XXI,Rule 66 (1) the executing court should cause proclamation of the intendedsale to be drawn up in the language of the court. Under sub rule (2) ofRule 66 of Order XXI, such proclamation should be drawn up afternotice to the decree holder and the judgment-debtor. Order XXI, Rule66 reads as follows:-D66. Proclamation of sales by public auction.- (1) Where anyproperty is ordered to be sold by public auction in execution of adecree, the Court shall cause a proclamation of the intended saleto be made in the language of such Court.

E(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and placeof sale, and specify as fairly and accurately as possible—

(a) the property to be sold, or, where a part of the propertywould be sufficient to satisfy the decree, such part; F(b) the revenue assessed upon the estate or part of the estate,where the property to be sold is an interest in an estate or in partof an estate paying revenue to the Government;

(c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and G(e) every other thing which the Court considers material for apurchaser to know in order to judge of the nature and value of theproperty:

Provided that where notice of the date for settling the terms ofHthe proclamation has been given to the judgment-debtor by means of an order under rule 54, it shall not be necessary to give noticeunder this rule to the judgment-debtor unless the Court otherwisedirects:

Provided further that nothing in this rule shall be construed asrequiring the Court to enter in the proclamation of sale its ownestimate of the value of the property, but the proclamation shallinclude the estimate, if any, given, by either or both of the parties.

(3) Every application for an order for sale under this rule shall beaccompanied by a statement signed and verified in the mannerhereinbefore prescribed for the signing and verification of pleadingsand containing, so far as they are known to or can be ascertainedby the person making the verification, the matters required bysub-rule (2) to be specified in the proclamation.

(4) For the purpose of ascertaining the matters to be specified inthe proclamation, the Court may summon any person whom itthinks necessary to summon and may examine him in respect toany such matters and require him to produce any document in hispossession or power relating thereto.

25. It is important to note here that two significant changes weremade to Order XXI, Rule 66 by Act 104 of 1976 w.e.f. 01.02.1977. Boththese changes were made to sub rule (2) of Rule 66. One of the changeswas the insertion of the words “or where a part of the property wouldbe sufficient to satisfy the decree, such part” in clause (a) of sub rule(2). The second change was the insertion of two provisos under subrule (2).

26. As an aside, it may be noted that the second proviso to subrule (2) inserted by Central Act 104 of 1976, was redundant in so far asCalcutta is concerned, since Calcutta already had a similar provisoinserted through a local amendment.

27. The first proviso under sub rule (2) of Rule 66 of Order XXIgives a discretion to the court not to give notice under Order XXI, Rule66 to the judgment-debtor, if a notice for settling the terms of theproclamation had been given to the judgment-debtor by means of anorder under Rule 54.

28. Rule 54 of Order XXI prescribes the method of attachment ofimmovable property. Sub rule (1A) of Rule 54, also inserted by Act 104

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Aof 1976, mandates that the prohibitory order under sub rule(1) shall requirethe judgment-debtor to attend court on a specified date to take notice ofthe date to be fixed for settling the terms of the proclamation of sale.This is why the first proviso to sub rule (2) of Rule 66 gives a discretionto the court to dispense with a second notice under Order XXI, Rule66(2).B

29. Keeping in mind the above statutory prescriptions, if we cometo the facts of the case, it is seen that the appellants have filed as additionaldocument in Annexure A-3, the copy of the extract of relevant orderspassed in Money Execution Case No.2 of 1975 by the District MunsifCourt, Bongaon. This document reveals that on 10.01.1975, the executingCcourt ordered the issue of notice of attachment under Order XXI, Rule54 of the Code. It was only thereafter that the court directed on16.07.1975, the issue of sale proclamation under Order XXI, Rule 66.

30. Thereafter, the judgment-debtor filed a petition under Section47 of the Code on 02.09.1975 (this was the first petition under SectionD47, while the appeal on hand arises out of the second petition underSection 47).

31. The executing court, at the instance of the judgment-debtoralso granted stay of further proceedings on 26.09.1975. But it is notclear from Annexure A-3 of the additional documents filed by theEappellants, as to when the said petition under Section 47 was disposedof. However it is clear from the order passed on 22.04.1978 that thedecree holder was directed to take further steps.

32. Even after directing the publication of the sale proclamation inthe newspaper, the executing court was more than fair to the judgment-Fdebtor, as could be seen from the order passed on 16.03.1979. On thesaid date the executing court found that in the newspaper publication,the case number was wrongly mentioned. Therefore, the court directedthe issue of fresh sale proclamation and fresh publication. It is onlythereafter that the judgment-debtor moved a petition on 30.05.1979 forGpostponement of the auction. It was rejected and the court proceededwith the auction. The decree holder himself participated in the auctionafter getting permission from the court. However, it is only the thirdparties who succeeded in getting the sale confirmed.

33. The above sequence of events would show that the judgment-debtor had sufficient opportunity to object to the inclusion of the entireH

property when an order was passed under Order XXI, Rule 54.Subsequently he had an opportunity to object to the inclusion of the wholeof the property, by taking advantage of the amended clause (a)of subrule (2) of Rule 66 of Order XXI, which speaks about a part of theproperty that would be sufficient to satisfy the decree. But the judgment-debtor despite filing a petition under Section 47 on 02.09.1975, did notpoint out how the property being a vacant land of an extent of 17 decimalscould have been divided. It must be pointed out at the cost of repetitionthat the notice of attachment under Order XXI, Rule 54 was ordered on10.01.1975 and the sale proclamation under Order XXI, Rule 66 wasdirected to be issued on 16.07.1975. It is only thereafter that the firstpetition under Section 47 was filed on 02.09.1975. Therefore, theappellants cannot compare themselves to the judgment-debtors in T.P.Subba Reddi or Ambati Narasayya (supra).

34. As we have pointed out elsewhere, the objection relating toOrder XXI, Rule 64 has been raised by the appellants for the first time inthe 5[th] round of litigation in execution. In the 1[st] round, the appellantsexhausted the gun-powder available under Order XXI, Rule 90, by takingrecourse to a compromise with the auction purchasers, after allegingmaterial irregularity in the conduct of the auction. The 1[st] round whichcommenced in 1979 came to an end in 1992 with the dismissal of SLP(C)No.18092 of 1991. In the order of the High Court dated 20.12.1990 that was under challenge in the said SLP, the High Court made it clear thatnone of the parties shall have any claim whatsoever as against the auctionpurchaser in respect of the purchased property (we have extracted thisin Para 10 above).

35. The 2[nd] round was kick-started with a suit in Suit No.249 of1992 for a declaration that the auction sale was void. This is despite theexpress bar of a separate suit, under Section 47(1) of the Code. But the2[nd] round got aborted with the dismissal of the suit due to abatement.

36. The 3[rd] round started with objections to the issue of salecertificate and it came to an end in the year 2001. The 4[th] roundcommenced when the auction purchasers moved the executing courtfor delivery of possession. Delivery was ordered by the executing courton 15.03.2002. This round came to a close with the dismissal of a SLP inthe year 2005 and a review petition in the year 2006, arising out of thedismissal of a revision petition challenging the order of the executingcourt for delivery of possession. It is only thereafter that the 5[th] round of AB

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Alitigation was started by the appellants by filing a petition under Section47 and raising the bogey of “jurisdictional error” on account of non-compliance with the mandate of Order XXI, Rule 64. In other words,the appellants have now exhausted almost all provisions available to ajudgment-debtor to stall execution and the case on hand is fit to be includedin the syllabus of a law school as a study material for students to getBequipped with the various provisions of the Code relating to execution.

Conclusion

37. The appellants cannot be allowed to raise the issue relating tothe breach of Order XXI, Rule 64 for the following reasons:- C

(i) A judgment-debtor cannot be allowed to raise objections as tothe method of execution in instalments. After having failed to raise theissue in four earlier rounds of litigation, the appellants cannot be permittedto raise it now;

(ii) As we have pointed out elsewhere, the original judgment-Ddebtor himself filed a petition under Section 47, way back on 02.09.1975.What is on hand is a second petition under Section 47 and, hence, it isbarred by res judicata. It must be pointed out at this stage that beforeAct 104 of 1976 came into force, there was one view that the provisionsof Section 11 of the Code had no application to execution proceedings.EBut under Act 104 of 1976 Explanation VII was inserted under Section11 and it says that the provisions of this Section shall apply to a proceedingfor the execution of a decree and reference in this Section to any suit,issue or former suit shall be construed as references to a proceeding forthe execution of the decree, question arising in such proceeding and aformer proceeding for the execution of that decree;F

(iii) Even in the 5[th] round, the appellants have not pointed out thelay of the property, its dimensions on all sides and the possibility of dividingthe same into two or more pieces, with a view to sell one or more ofthose pieces for the realisation of the decree debt;

(iv) The observations in paragraph 4 of the order of the HighGCourt dated 20.12.1990 in C.O.No.2487 of 1987 that, “none of theparties shall have any claim whatsoever as against the applicant inrespect of the purchased property which shall be deemed to be hisabsolute property on and from the expiry of 15[th] December, 1980”,has attained finality;H

(v) Section 65 of the Code says that, “where immovable propertyis sold in execution of a decree and such sale has become absolute,the property shall be deemed to have vested in the purchaser fromthe time when the property is sold and not from the time when thesale becomes absolute”. The sale of a property becomes absolute underOrder XXI, Rule 92(1) after an application made under Rule 89, Rule 90or Rule 91 is disallowed and the court passes an order confirming thesame. After the sale of an immovable property becomes absolute interms of Order XXI, Rule 92(1), the Court has to grant a certificateunder Rule 94. The certificate has to bear the date and the day on whichthe sale became absolute. Thus a conjoint reading of Section 65, OrderXXI, Rule 92 and Order XXI, Rule 94 would show that it passes throughthree important stages (other than certain intervening stages). Theyare, (i) conduct of sale; (ii) sale becoming absolute; and (iii) issue ofsale certificate. After all these three stages are crossed, the 4[th] stage ofdelivery of possession comes under Rule 95 of Order XXI. It is at this4[th] stage that the appellants have raised the objection relating to OrderXXI, Rule 64. It is not as if the appellants were not aware of the factthat the property in entirety was included in the proclamation of sale.Therefore, the claim on the basis of Order XXI, Rule 64 was rightlyrejected by the High Court.

38. In view of the above, the appeal is devoid of merits and, hence,it is dismissed. There will be no order as to costs.

Devika Gujral

Appeal dismissed.

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