JIBON KRISHNA MUKHERJEE,& ANOTHER versus NEW BHEERBHUM COAL CO. LTD. & ANOTHER

Citation: [1960] 2 S.C.R. 198 · Decided: 10-11-1959 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed
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Judgment (excerpt)

• 
'959 
Noveniber IO, 
198 
SUPREME COURT REPORTS [1960 (2)] 
JIBON KRISHNA MUKHERJEE,& ANOTHER 
~ 
. 
NEW BHEERBHUM COAL CO. LTD. & ANOTHER. 
(P. B. GAJENDRAGADKAR, K. SuBBA RAO, and 
J. c. SHAH, JJ.) 
( 
Decree, execution of-Receiver appointed and authorised by· 
.-
court to sell property-Sale by receiver-Application to set aside 
such sale on deposit-Maintainability-Code of Civil ProcedMe 
(Act v of I908), SS. 5I, I5I, 0. 2I, r. 89. 
On the judgment debtor's default in paying the agreed 
instalments of the decretal amount a receiver was appointed by 
the Court in execution of the decree under s. 51 of the Code of 
Civil Procedure with power to sell the judgment debtor's pro-
perty either by private agreement or public auction. 
The 
receiver entered into an agreement 'vith respondent No. 2, a third 
party, for the sale of the property for a larger sum than the 
decretal amount on the condition that the sale should be con-
firmed by the High Court. The High Court allowed the decree 
holder's application for confirmation of the sale by the receiver 
but allowed the judgment debtor time to pay the balance of the 
decretal amount in which case the sale \Vas not to be coniirmed. 
The judgment debtor made partial payments but failed to pay 
the entire decretal amount \Vi thin the prescribed time and in spite 
of several opportunities given to him by the Court to do so. 
He 
ultimately applied to the Court !or cancellation of the agreement 
for sale by the receiver and prayed for leave to deposit tne whole 
balance of the decretal amount. 1 his was disallowed by a Single 
Judge and on appeal by a Division Bench of the High Court. The 
main question that arose for decision both in the High Court, and 
Supreme Court, on appeal by special leave, was whether the 
provisions of 0. 21, r. 89 of the Code of Civil Procedure apply to 
a sale held by a receiver appointed by th' Court. The High 
~Court answered this question in the negative. 
Held, that the High Court was right in refusing to entertain-
the appellant's application> nnder 0. 21, r. 89. 
In a sale by the receiver he is not required to issue a proclam-
ation of sale as required by 0. 21, r. 66 o! the Code of Civil Pro-
cedure and as such the provisions of 0. 21, r. 89 under which a 
sale proclamation is an essential element, do not apply to a sale 
held by him. 
M inatoonnessa Bibee and Others v. Khatoonnessa Bibi and 
Others (1898) 1.L.R. 21 Cal. 479, Golam Hossein Cassin Arif! v. 
Fatima Begam (1910) 16 C.W.N. 394, Jogemaya Dasee v. Akhoy 
Coo,nar Das (1912) I.LR. 40 Cal. 140, Basir Ali v. Hafiz Nazir 
Ali (1916) I.L.R 43 Cal. 124 and Rani Bala Bose and Othersv. 
Hirendra Chandra Ghose and Others (1948) 52 C.W.N. 739, 
considered. 
-
·' 
... 
--) 
S.C.R. 
SUPREME COURT REPORTS 
199 
Held, further, that the High Court was right in holding that 
the court's jurisdiction could not be invoked in favour of the 
appellant under s. 151 of the Code of Civil Procedure in view of 
the fact that he committed repeated defaults in spite of several 
opportunities given to him by the Court to pay the balance of the 
decretal amrmnt. and that this court would not interfere with the 
discretiol) exercised by the High Court in such circumstances. 
The order of the High Court confirming the sale by the 
receiver was not a conditional one. It gave an opportunity to 
the judgment debtor to pay the decr~tal amount in the manner 
prescribed by it failing which the sale was to stand confirmed. 
There is no scope for applying the principle that the court had 
inherent power to deal with an application to set aside an order 
made ex parte on a proper case being substantiated, as faid down· 
in S. M. Sudevi Devi v. Sovaram Agarwallah (1906) IO C.W.N. 306. 
CIVIL 
APPELLATE 
JURISDICTION: 
Civil Appeal 
No. 342 of 1959. 
Appeal by special leave from the jurlgment and 
decree dated April 29, 1959, of -the Calcutta High 
Court, in appeal from Original Order No. 188 of 1958. 
H. N. Sanyal, Additional Solicitor-General of India. 
T. S. Venkatarama, K. R. Sarma andK. R. Chaudhry, 
for the appellants. 
S. N. Mukherjee, for respondent No.L 
N. C: Chatterjee, S. K. Acharyya and R. S. Narula, 
for respondent No. 2. 
1959. 
November IO. 
The Judgment of the Court 
was delivered by 
I959 
J ibon Krishna 
Mukherjes 
v. 
New Bheerbhum 
Coal Co. Ltd. 
GA.JENDRAGADKAR J.-The principal question which Gajendragadkar J . 
which this appeal by special leave raises for· our 
decision is: Whether the provisions o
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