LexSUKUMAR DE versus BIMALA AUDDY & ORS.
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[2013) 12 S.C.R. 198 A SUKUMAR DE v. BIMALA AUDDY & ORS. (Special Leave Petition (Civil) No. 25797 of 2004) B OCTOBER 28, 2013 [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.] CODE OF CIVIL PROCEDURE, 1908: c 0.21, r.89 - Application to set aside sale, on deposit - Order of High Court affording the judgment-debtors one more opportunity to deposit the amount - Challenged by auction- purchaser - Held: Immediately after the order of tf igh Court, judgment-debtors had deposited the amount -- Exercise of D discretion by High Court cannot be found to be erroneous nor contrary to law so as to warrant interference in exercise of jurisdiction under Art. 136 of the Constitution -- There is no substantial question of law - Constitution of Jndi, 1950 - Art.136. E In the case of a decree for a sum of Rs.6,600/- passed in the year 1967, the property of the judgment debtor (respondent no. 4) was put up on auction on July, 1970; and the bid of the petitioner in a sum of Rs.1.5 lakhs being the highest, the auction sale was confirmed in his favour F on 9. 7.1990. Respondent No. 4 filed an application requesting the executing court to intimate the amount to be deposited so that he could file application under 0. 21, I r. 89 of CPC. The application was rejected. The High Court set aside the order of the executing court and G directed the executing court to intimate the amount to the judgment debtors. However, in another revision petition, the High Court, by the impugned order passed on 8.6.2004, gave one more opportunity to the judgment- debtor to pay decretal amount with interest as upto that H 198 SUKUMAR DE v. BIMALA AUDDY & ORS. 199 stage the controversy regarding actual payment had not A been settled. Dismissing the special leave petition filed by the auction purchaser, the Court HELD: B In the circumstances, exercise of discretion by the High Court cannot be found to be erroneous nor contrary to law so as to warrant interference of this Court under Art. 136 of the Constitution. Further, there is no c substantial question of law. It is also to be kept in mind. that immediately after the impugned order of the High Court, the judgment debtors had deposited the amount. In the circumstances, they should not be made to lose the property. [para 8] [204-E-F] D CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 25797 of 2004. From the Judgment and Order dated 08.06.2004 of the High Court at Calcutta in Civil Order No. 2719 of 1992. E Rana Mukherjee, Mridula Ray Bharadwaj, Gopal Jha for the Petitioner. Krishnan Venugopal, Uttpal Majmudar, B.P. Yadav, Sarla Chandra for the Respondents. F The Judgment of the Court was delivered by A.K. SIKRI, J. 1. This case has a chequered history. However, we do not find it necessary to narrate all the events G leading to the filing of the present Special Leave Petition, as the issue in the present Special Leave Petition, which arises out of impugned judgment dated 8.6.2004 of the High Court of Calcutta, is a narrow one. In fact, as would be noticed hereafter, the order in question is discretionary in nature and the grievance H 200 SUPREME COURT REPORTS (2013] 12 S.C.R. A of the petitioner is that in the facts and circumstances of the present case no such discretion should have been exercised by the High Court thereby granting one more opportunity to the respondents to pay the decretal amount with interest, the effect of which was to nullify the auction of the property in the execution B proceedings which was bought by the petitioners herein. 2. The facts which needs to be traversed for this purpose are recapitulated below: Way back in the year 1965, a money suit No. 20 of 1965 C was instituted by one Sm!. Bimala Bala Sen, (since deceased) (hereinafter to be referred as the decree holder) for a sum of Rs. 6,100/-, being refund of earnest money. An ex parte decree was passed on 23.12.1967 against Respondent Nos. 1 to 4, 6 and 7 herein (hereinafter to be referred as the judgment D debtors). This decree was in the sum of Rs. 6,600/- (Rs. 6, 100/ - money claimed + Rs. 500/- as cost). The judgment debtors filed an application for setting aside the ex parte decree which was dismissed and appeals thereagainst were also dismissed. This decree thus, became final. Execution Case was filed on E 24.9.1970 by the decree holder. 3. In this execution proceedings, some objections were filed by the judgment debtors. The Executing Court even
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