KUMAR SUDHENDU NARAIN DEB versus MRS. RENUKA BISWAS AND ORS.

Citation: [1991] SUPP. 2 S.C.R. 233 · Decided: 13-11-1991 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

KUMAR SUDHEtmu NARAIN DEB 
v. 
MRS. RENUKA BISW AS AND ORS. 
NOVEMBER 13, 1991 
A 
[MADAN MOHAN PUNCHHI AND S.C. AGRAWAL, JJ.] 
B 
Civil Procedure Code, 1908-Sections 2(2) and 47, Order 34--J>re-
liminary decree by trial Court dated 25. 7.1962-Substituted preliminary 
decree by High Court by consent of parties dated 13.12.1971-Final de-
cree dated 6. 3. 63 by trial Court on the basis of its preliminary decree 
dated 25.7.1962-A.uction sale on 15.3.1968-Validity of after passing of C 
High Court's substituted preliminary decree. , 
Civil Procedure Code, 1908-&ction 2(2), Explanation--"Decree"-
Construction of 
Civil Procedure Code; 1908-0rder 34, Rules 1-4-Fixing date in 
D 
postponing sale confirmation--Executing Court's power--Limitation. 
Civil Procedure Code, 1908-0rder 34, Section 47-Auction sale 
before the passing of High Court's substituted preliminary decree-Claim 
of auction purchasers to be parties to suit-Effect. 
Civil Procedure Code, 1908-Section 151, read with Article 142, 
Constitution of India, 1950--Powers of Supreme Court under-Direction 
to judgment-Debtor to pay interest on the auction s.ale amount. 
E 
The appellant and his co-heirs mortgaged their two-third in-
terest in ,the proper:ty as security for a loan of Rs. 27,000 obtained 
F 
from one Smt. Biswas, the predecessor-in-interest of the plaintiffs-
respondents. 
After the death of the mortgagee, some of tier heirs and legal 
representatives filed a mortgage suit on 13.3.1961 for the recovery 
of the mortgage money before the Subordinate J'udge and seeking G 
enforcement and .sale of the mortgaged property. The left out heir 
of the mortgagee, originally arrayed as a defenda111t was transposed. 
as a co-plaintiff. 
· 
On 25.7.1962, the trial court passed a prelhninary decree foi:. 
Rs.51,570 totalling the principal sum and interest, and costs. The H 
233 
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B 
c 
D 
E 
F 
G 
H 
234 
SUPREME COURT REPORTS 
[1991) SVPP. 2 S.C.R. 
decretal amount was proportioned in as much as two-third was or-
dered as payable to the original plaintiffs and the remaining one-
third to the transposed co-plaintiff. T;1e decretal amount was to be 
paid by the mortgagors in 15 equal annual instalments and in de-
faul~ of any one of the instalments, the mortgagee-plaintiffs were at 
liberty to apply for making the decree final and in the event of such 
application being made the mortgitged property, or a part thereof, 
shall be directed to be sold. Interest also· was allowed on the sum 
due from the date of institution of the suit till the date of realisation 
of the entire sum. 
On 18.12.1962, the proforma-respondent no.8 filed an appeal 
against the preliminary decree in the High Court. Prayer for stay of 
execution of the decree was rejected. 
· 
Though some deposits were made on the basis of the prelimi-
nary decree, there was a failure to deposit in terms thereof. There-
fore a final decree was passed by the trial court on 6.3.1963, when 
the appeal against the preliminary decree was pending in the High 
Court. 
The decree-holders representing two-third interest and the de-
cree-holder representing one-third interest filed two separate ex-
ecution petitions for realisation of their shares under the decree. 
Both the execution petitions contained identical prayers for sale of 
the mortgaged property and the execution petitions were consoli-
dated and numbered. 
On 10.8.1963, proclamation of sale was drawn. The value .of 
the mortgaged property was suggested as Rs. 75,000 and Rs. 3 lacs, 
by the decree-holders and the appellant respectively. 
On 4.3.1968, before the sale of the property, the appellant 
made a regular objection u/s 47, C.P.C. The appellant had also 
made some more deposits within the intervening period of 41h years. 
The property was sold on 15.3.1968 on the proclamation of 
sale as was drawn on 10.8.1963 for Rs. 1,00,500 in favour of the 
auction-purchasers [respondents nos. 6 & 7). 
On 11.4.1968 the appeJlant filed an application under Order 
21, Rule 90, C.P.C. Tor setting aside the sale and prayed for stay of 
its confirmation on the grounds that the judgment-debtors had no 
KUMAR SUDHENDU v. MRS. RENUKA BISW AS 
235 
saleable interest in the mortgaged property; that legally two execu-
A 
tion petitions could not be consolidated; and that th.e provisions of 
section 35 of the Bengal Money Lenders' Act had been overlooked. 
The application under Order 21 Rule 90 was treated as part of 
the original objection u/s. 47, C.P.C. 
The executing C
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