Case fit to be included in law school syllabus: Supreme Court on fifty-year old dispute

Persistent litigation surrounding the execution of a money decree in a 50-year-old civil suit prompted the Supreme Court to remark in jest that the case was worthy of inclusion in law school syllabus to acquaint students with provisions of the Civil Procedure Code (CPC) relating to execution of decrees (Dipali Biswas v. Nirmalendu Mukherjee)..The judgment containing these observations was passed by a Bench of Justices Hemant Gupta and V Ramasubramanian challenging the order of the High Court which had confirmed an order of the executing court dismissing an application under Section 47 CPC.The Court noted that the litigation was exactly half a century old (it started with a suit filed in 1971) and the present appeal arose out of the fifth round of litigation at the stage of execution of a simple money decree.“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,” the Court said..By way of background, one Rama Rani Devi had filed a simple suit for recovery of money in 1971 on the file of the District Munsif Court at Bongaon in West Bengal, against one Sasadhar Biswas (judgment-debtor), for recovery of a sum of ₹3,000. The suit was decreed ex parte on July 25, 1974, with a direction to the defendant to pay the decretal amount in six equal instalments with a default clause.Since the decree was not honoured, the decree holder filed an execution petition in 1975 praying for the attachment and sale of 17 decimal of land (approximately about 7450 sq ft). A sale proclamation was issued by the executing court on July 16, 1975 after which the judgment-debtor filed an application assailing the sale proclamation issued by the executing court, on the ground of material irregularity and fraud. However, the same was dismissed on September 3, 1975.An auction sale was held on May 30, 1979, in which two brothers, Sachindra Nath Mukherjee and Dulal Kanti Mukherjee became the highest bidders, having offered a sum of ₹5,500 as the highest bid amount. The highest bidders also deposited the money into court.However, the judgment-debtor then filed an application on June 27, 1979 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. During the pendency of this petition, the judgment-debtor also entered into a compromise on July 19, 1980 with the auction purchasers. As per the same, if he paid the entire money due to the auctions purchaser by December 1980, the auction would stand revoked.The judgment-debtor admittedly deposited on December 15, 1980, only a sum of ₹3,700, purportedly on the basis of the calculation provided by the court officer in terms of Order XXI, Rule 89 of the CPC. Since the judgment debtor deposited only a sum of ₹3,700, as against the amount of ₹5,500 deposited by the auction purchasers, the executing court dismissed the application under Order XXI, Rule 90 1979.Four days later, the executing court recalled the order and recorded full satisfaction in the execution. This led to protracted litigation going up to the Supreme Court, which eventually ruled against the judgment debtor in 1992. This was followed by various cases, all of which eventually went against the judgment debtor..The fifth and present round started when a petition was moved in 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 therefore a jurisdictional error has crept in. This petition was dismissed by the executing court in 2007 and revision petition against the same was dismissed by the High Court in March 2008, leading to the present appeal before the Supreme Court.The case of the appellant was based on Order XXI Rule 64, which enables an executing court to order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same.It was the contention of the appellants that Order XXI, Rule 64 casts not a discretion, but an obligation to sell only such portion of the property which is sufficient to satisfy the decree..The Supreme Court, however, noted that this objection was taken only in the fifth round of the litigation.“The sequence of events would show that the judgment-debtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule. 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,” the Court noted.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, the Court said.Moreover, the original judgment-debtor himself had filed a petition under Section 47 way back in 1975. What is on hand is a second petition under Section 47 and, hence, it is barred by res judicata, the Court ruled.Even in the fifth 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, the Court noted while rejecting the plea..[Read Judgment]