LexMAYA DEVI (DEAD) THROUGH LRS. versus SMT. RAJ KUMARI BATRA (DEAD) THROUGH LRS. & ORS.
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[2010) 10 S.C.R. 1113 MAYA DEVI (DEAD) THROUGH LRS. v. SMT. RAJ KUMARI BATRA (DEAD) THROUGH LRS. & ORS. (Civil Appeal No. 10249 of 2003) SEPTEMBER 8, 2010 [MARKANDEY KAT JU AND T.S. THAKUR, JJ.] Code of Civil Procedure, 1908 - Or. 21 rr. 66(2), 72 and A B 85 - Violation of - Decree - Attachment of property of C judgment-debtor and issuance of sale proclamation - Proceedings for auction sale - Sale of property in favour of decree-holder on basis of compromise/adjustment between the parties - Confirmation of sale and issuance of sale certificate by executing court -Challenge to, on the ground D of violation of the provisions of Or. 21 rr. 66(2), 72 and 85 - On appeal, held: Said issues were decided in three round of proceedings - In the first round, issue as regards confirmation of sale in favour of decree holder, grant of sale certificate to her as a/so compromise recorded in execution proceedings E was declared to be valid - Said issue attained finality and cannot be re-agitated - Decree under execution was held to be a mortgage decree - In second round, executing court held that the decree continued to subsist till judgment-debtor delivered possession of premises in terms of compromise F and the court accordingly issued warrants for delivery of possession to decree holder- Said order a/so attained finality - In the third round, application by decree holder was held to be within time and maintainable in law - It cannot be said that since the first appeal filed by judgment-debtor in the third G round was dismissed in limini, by a non-speaking order, appellate court ought to have remitted the matter to Single Judge of High Court - Since the litigation was three decades old, appellate court decided to resolve the matter on merits 1113 H 1114 SUPREME COURT REPORTS [2010] 10 S.C.R. A rather than remitting it back - Thus, interference under Article 136 not called for - Constitution of India, 1950 - Article 136 - Auction - Decree - Appeal - Judgment/order - Non- speaking order. 8 Judgment/order - Recording of reasons in appealable orders:. Requirement of- Held: Recording of reasons in such cases is very important - Appellate court or authority ought to have advantage of examining reasons that prevailed with the court or the authority making the order - Absence of C reasons in appealable order deprives appellate court or authority of that advantage and casts an onerous responsibility upon it to examine and determine the question on its own - Appellate court or authority may in a given case decline to undertake any such exercise and remit the matter back to lower court or authority for a fresh and reasoned order D - Remands are usually avoided if appellate court is of the view that it will prolong the litigation - Appeal - Delayllaches. The respondent-plaintiff filed a recovery suit against the appellant-defendant and the same was decreed. In the E execution of the decree, the defendant's property was attached and sold in public auction in favour of the decree-holder. The judgment-debtor filed objection to the legality of the auction, but during its pendency, the parties entered into a compromise that the decree holder would F deposit a sum of Rs.35,000/- for payment to the judgment debtor, whereupon the latter would handover to the decree holder the vacant possession of the property. The judgment-debtor filed an application for setting aside the compromise as also an application for setting aside the G sale for non-compliance of Or. 21 rr. 72 and 85 of CPC. The executing court confirmed the sale in favour of the decree-holder on basis of the compromise between the parties. The said order attained finality. Thereafter, the judgment-debtor filed fresh objections before the H MAYA DEVI (DEAD) THROUGH LRS. v. RAJ KUMARI 1115 BATRA (DEAD) THROUGH LRS. executing court that the said property was exempt from A attachment and sale because it was a residential premises, thus, the decree was a simple money decree. The executing court held that the confirmation of sale and issue of the sale certificate in favour of the decree-holder was legal and valid and that the decree-holder was entitled to possession of the property sold in her favour. B It issued warrants for delivery of possession of the property in favour of the decree-holder. The judgment- debtor for the third time raised the objections to the delivery of possession on the ground that the
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