Dipali Biswas & Ors. vs Nirmalendu Mukherjee & Ors.

91 is disallowed and the court passes an order confirming the same – After the sale of an immovable property becomes absolute in terms of Or.XXI, r.92(1), the Court has to grant a certificate under r. 94 bearing 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 would show that it passes through three important stages (other than certain intervening stages), conduct of sale; sale becoming absolute; and issue 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 objection relating to Or.XXI, r.64 – It is not as if the judgment debtor was not aware of the fact that the property in entirety was included in the proclamation of sale – Therefore, the claim on the basis of Or.XXI, r. 64 was rightly rejected by the High Court.

Code of Civil Procedure, 1908: s.11 – Applicability of, to execution proceedings – Original judgment debtor filed a petition under s.47, way back on 02.09.1975 – Second petition under s.47 thus will be barred by res judicata – Before Act 104 of 1976 came into force, there was one view that the provisions of s.11 of the Code had no application to execution proceedings – But under Act

104 of 1976 Explanation VII was inserted under s.11 and it says that the provisions of this Section shall apply to a proceeding for 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 for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree – Res judicata.

Dismissing the appeal, the Court

HELD: 1.1 Under Order XXI, Rule 66 (1) the executing court should cause proclamation of the intended sale to be drawn up in the language of the court. Under sub rule (2) of Rule 66 of Order XXI, such proclamation should be drawn up after notice to the decree holder and the judgment-debtor. Two significant changes were made to Order XXI, Rule 66 by Act 104 of 1976 w.e.f. 01.02.1977. Both these changes were made to sub rule (2) of Rule 66. One of the changes was the insertion of the words “or where a part of the property would be sufficient to satisfy the decree, such part” in clause (a) of sub rule (2). The second change was the insertion of two provisos under sub rule (2). The first proviso under sub rule (2) of Rule 66 of Order XXI gives a discretion to the court not to give notice under Order XXI, Rule

66 to the judgment-debtor, if a notice for settling the terms of the proclamation had been given to the judgment-debtor by means of an order under Rule 54. Rule 54 of Order XXI prescribes the method of attachment of immovable property. Sub rule (1A) of Rule 54, also inserted by Act 104 of 1976, mandates that the prohibitory order under sub rule(1) shall require the judgmentdebtor to attend court on a specified date to take notice of the 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 discretion to the court to dispense with a second notice under Order XXI, Rule 66(2). [Paras 24, 25, 27 and 28][288-C-D; 229-E, G-H; 230-A-B]

1.2 It is seen that the appellants have filed as additional document the extract of relevant orders passed in Money Execution Case No.2 of 1975 by the District Munsif Court, Bongaon. This document reveals that on 10.01.1975, the executing court ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code. It was only thereafter that the court directed on 16.07.1975, the issue of sale proclamation under Order XXI, Rule 66. Thereafter, the judgment-debtor filed a petition under Section 47 of the Code on 02.09.1975 (this was the first petition under Section 47, while the appeal on hand arises out of the second petition under Section 47). The executing court, at the instance of the judgment-debtor also granted stay of further proceedings on 26.09.1975. But it is not clear as to when the said petition under Section 47 was disposed of. However it is clear from the order passed on 22.04.1978 that the decree holder was directed to take further steps. [Paras 29, 30 and 31][230-B-E]

1.3 Even after directing the publication of the sale proclamation in the newspaper, the executing court was more than fair to the judgment-debtor, as could be seen from the order passed on 16.03.1979. On the said date the executing court found that in the newspaper publication, the case number was wrongly mentioned. Therefore, the court directed the issue of fresh sale proclamation and fresh publication. It is only thereafter that the judgment-debtor moved a petition on 30.05.1979 for postponement of the auction. It was rejected and the court proceeded with the auction. The decree holder himself participated in the auction after getting permission from the court. However, it is only the third parties who succeeded in getting the sale confirmed. [Para 32][230-F-G]

2. The sequence of events would show that the judgmentdebtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule

54. Subsequently he had an opportunity to object to the inclusion of the whole of the property, by taking advantage of the amended clause (a)of sub rule (2) of Rule 66 of Order XXI, which speaks about a part of the property that would be sufficient to satisfy the decree. But the judgment-debtor despite filing a petition under Section 47 on 02.09.1975, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided. The notice of attachment under Order XXI, Rule 54 was ordered on 10.01.1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on 16.07.1975. It is only thereafter that the first petition under Section 47 was filed on 02.09.1975. [Para 33][230-H; 231-A-C]

3.1 The objection relating to Order XXI, Rule 64 has been raised by the appellants for the first time in the 5th round of litigation in execution. In the 1st round, the appellants exhausted the gun-powder available under Order XXI, Rule 90, by taking recourse to a compromise with the auction purchasers, after alleging material irregularity in the conduct of the auction. The 1st round which commenced in 1979 came to an end in 1992 with the dismissal of SLP. 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 that none of the parties shall have any claim whatsoever as against the auction purchaser in respect of the purchased property. [Para 34][231-D-E]

3.2 The 2 nd round was kick-started with a suit for a declaration that the auction sale was void. This is despite the express bar of a separate suit, under Section 47(1) of the Code. But the 2nd round got aborted with the dismissal of the suit due to abatement. The 3rd round started with objections to the issue of sale certificate and it came to an end in the year 2001. The 4th round commenced when the auction purchasers moved the executing court for delivery of possession. Delivery was ordered by the executing court on 15.03.2002. This round came to a close with the dismissal of a SLP in the year 2005 and a review petition in the year 2006, arising out of the dismissal of a revision petition challenging the order of the executing court for delivery of possession. It is only thereafter that the 5th round of litigation was started by the appellants by filing a petition under Section 47 and raising the bogey of “jurisdictional error” on account of noncompliance with the mandate of Order XXI, Rule 64. In other words, the appellants have now exhausted almost all provisions available to a judgment-debtor to stall execution. [Paras 35 and 36][231-F-H; 232-A-B]

4. The appellants cannot be allowed to raise the issue relating to the breach of Order XXI, Rule 64 for the following reasons:(i) 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;

(ii) The original judgment-debtor 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 is barred by res judicata. Before Act 104 of 1976 came into force, there was one view that the provisions of Section 11 of the Code had no application to execution proceedings. But under Act 104 of 1976 Explanation VII was inserted under Section 11 and it says that the provisions of this Section shall apply to a proceeding for 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 for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree;

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

(iv) The observations in the order of the High Court dated 20.12.1990 in C.O.No.2487 of 1987 that, “none of the parties shall have any claim whatsoever as against the applicant in respect of the purchased property which shall be deemed to be his absolute property on and from the expiry of 15 th December, 1980”, has attained finality;

(v) Section 65 of the Code says that, “where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute”. The sale of a property becomes absolute under Order XXI, Rule 92(1) after an application made under Rule 89, Rule 90 or Rule 91 is disallowed and the court passes an order confirming the same. After the sale of an immovable 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 sale became absolute. Thus a conjoint reading of Section 65, Order XXI, Rule 92 and Order XXI, Rule 94 would show that it passes through three important stages (other than certain intervening stages). They are, (i) conduct of sale; (ii) sale becoming absolute; and (iii) issue of sale certificate. After all these three stages are crossed, the 4th stage of delivery of possession comes under Rule

95 of Order XXI. It is at this 4th stage that the appellants have raised the objection relating to Order XXI, Rule 64. It is not as if the appellants were not aware of the fact that the property in entirety was included in the proclamation of sale. Therefore, the claim on the basis of Order XXI, Rule 64 was rightly rejected by the High Court. [Para 37][232-B-H; 233-A-D]

Takkaseela Pedda Subba Reddi vs. Pujari

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