DIPALI BISWAS & ORS. versus NIRMALENDU MUKHERJEE & ORS.

Citation: [2021] 10 S.C.R. 216 · Decided: 05-10-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 10 S.C.R.
216
DIPALI BISWAS & ORS.
v.
NIRMALENDU MUKHERJEE & ORS.
(Civil Appeal No. 4557 of 2012)
OCTOBER 05, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Code of Civil Procedure, 1908: Or.21 r. 64 – Execution of
money decree – Attachment of 117 decimal of land (app. 7450 sq.
feet) – Sale proclamation – Auction sale – Issuance of Sale
Certificate – Application by auction purchaser seeking delivery of
possession allowed by executing court – However, meanwhile
judgment debtor constructed building on the land sold – Executing
court ordered demolition – The said order attained finality –
Judgment debtor started fresh round of litigation by moving petition
before the executing court under s.47 of the Code, on the ground
that the mandate of Or.XXI r.64 was not followed in the auction and
that therefore a jurisdictional error has crept in – Executing court
dismissed the petition – High Court dismissed revision by judgment
debtor on the ground that the issue, never having been raised earlier,
cannot be allowed to be raised at this distance of time – Aggrieved
judgment debtor filed instant appeal – Held: 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 Or.XXI, r.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 r.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 s.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 or its layout, 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 – s.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
[2021] 10 S.C.R. 216
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sale becomes absolute” – The sale of a property becomes absolute
under Or.XXI, r.92(1) after an application made under rr.89, 90 or
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 signif

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