Case: DIPALI BISWAS  &amp; ORS Vs. NIRMALENDU MUKHERJEE &amp; ORS

had been given to the judgment-debtor by means of an order under Rule 54. 28. Rule 54 of Order XXI prescribes the method of attachment of immovable property. Sub rule (1A) of Rule 54, also inserted by Act 104 of 1976, mandates that the prohibitory order under sub rule(1) shall require the judgment-debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. This is why the first proviso to sub rule (2) of Rule 66 gives a discretion to the court to dispense with a second notice under Order XXI, Rule 66(2). 29. Keeping in mind the above statutory prescriptions, if we come to the facts of the case, it is seen that the appellants have filed as additional document in Annexure A-3, the copy of the extract of relevant orders passed in Money Execution Case No.2 of 1975 by the District Munsif Court, Bongaon. This document reveals that on 10.01.1975, the executing court ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code. It was only thereafter that the court directed on 16.07.1975, the issue of sale proclamation under Order XXI, Rule 66. 30. Thereafter, the judgment-debtor filed a petition under Section 47 of the Code on 02.09.1975 (this was the first petition under Section 47, while the appeal on hand arises out of the second petition under Section 47). 31. The executing court, at the instance of the judgment-debtor also granted stay of further proceedings on 26.09.1975. But it is not clear from Annexure A-3 of the additional documents filed by the appellants, as to when the said petition under Section 47 was disposed of. However it is clear from the order passed on 22.04.1978 that the decree holder was directed to take further steps. 32. Even after directing the publication of the sale proclamation in the newspaper, the executing court was more than fair to the judgment-debtor, as could be seen from the order passed on 16.03.1979. On the said date the executing court found that in the newspaper publication, the case number was wrongly mentioned. Therefore, the court directed the issue of fresh sale proclamation and fresh publication. It is only thereafter that the judgment-debtor moved a petition on 30.05.1979 for postponement of the auction. It was rejected and the court proceeded with the auction. The decree holder himself participated in the auction after getting permission from the court. However, it is only the third parties who succeeded in getting the sale confirmed. 33. The above 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 Order XXI, Rule 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 Rule 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 Section 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. It must be pointed out at the cost of repetition that the notice of attachment under Order XXI, Rule 54 was ordered on 10.01.1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on 16.07.1975. It is only thereafter that the first petition under Section 47 was filed on 02.09.1975. Therefore, the appellants cannot compare themselves to the judgment-debtors in T.P. Subba Reddi or Ambati Narasayya (supra). 34. As we have pointed out elsewhere, the objection relating to Order XXI, Rule 64 has been raised by the appellants for the first time in the 5th round of litigation in execution. In the 1st round, the appellants exhausted the gun-powder available under Order XXI, Rule 90, by taking recourse to a compromise with the auction purchasers, after alleging material irregularity in the conduct of the auction. The 1st round which commenced in 1979 came to an end in 1992 with the dismissal of SLP(C) No.18092 of 1991. In the order of the High Court dated 20.12.1990 that was under challenge in the said SLP, the High Court made it clear that none of the parties shall have any claim whatsoever as against the auction purchaser in respect of the purchased property (we have extracted this in Para 10 above). 35. The 2nd round was kick-started with a suit in Suit No.249 of 1992 for a declaration that the auction sale was void. This is despite the express bar of a separate suit, under Section 47(1) of the Code. But the 2nd round got aborted with the dismissal of the suit due to abatement. 36. The 3rd round started with objections to the issue of sale certificate and it came to an end in the year 2001. The 4th round commenced when the auction purchasers moved the executing court for delivery of possession. Delivery was ordered by the executing court on 15.03.2002. This round came to a close with the dismissal of a SLP in the year 2005 and a review petition in the year 2006, arising out of the dismissal of a revision petition challenging the order of the executing court for delivery of possession. It is only thereafter that the 5th round of litigation was started by the appellants by filing a petition under Section 47 and raising the bogey of jurisdictional error on account of non-compliance with the mandate of Order XXI, Rule 64. In other words, the appellants have now exhausted almost all provisions available to a judgment-debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution. Conclusion

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. The only mantra, by the recitation of which, the appellants hope to succeed in this half-a-century old litigation, is Order XXI, Rule 64 of the Code. This provision enables an executing court to order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same.In Takkaseela Pedda Subba Reddi vs. Pujari Padmavathamma & Ors (1977) 3 SCC 337,  this Court held that the, executing court derives jurisdiction to sell properties attached, only to the point at which the decree is fully satisfied, and that the words, necessary to satisfy the decree, clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. This Court went further to hold that the issue flowing out of Order XXI, Rule 64 goes to the very root of the jurisdiction of the executing court and that therefore the fact that an objection in this regard was not raised before the executing court is not sufficient to put him out of court.21. But the aforesaid decision arose out of a case where the decretal amount for which the properties were to be sold was mentioned in the warrant of sale and sale proclamation as Rs.16,715/-. The lands in two villages namely Devanoor and Gudipadu were brought to sale. The sale of lands in one village alone fetched Rs.16,880/-. Yet the executing court proceeded to sell the lands in Gudipadu also. It is in that context that this Court held as aforesaid.22. The decision in Ambati Narasayya vs M. Subha Rao & Anr (1989) Supp. 2 SCC 693,  while following T.P. Subba Reddi (supra), went a step further and held that if the property is large and the decree to be satisfied is small, the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the decree debt and that it is immaterial whether the property is one or several.23. But the decision in Ambati Narasayya (supra) also arose out of a particular context. The land that was sold in Ambati Narasayya (supra) was of the extent of 10 acres and it was sold for Rs.17,000/- for the satisfaction of a claim of Rs.2400/-. The land of the extent of 10 acres is certainly large enough and is capable of division. But in the case on hand, the extent of land is only 17 decimals, working out to (7450 Sq.ft.).29. Keeping in mind the above statutory prescriptions, if we come to the facts of the case, it is seen that the appellants have filed as additional document in Annexure A-3, the copy of the extract of relevant orders passed in Money Execution Case No.2 of 1975 by the District Munsif Court, Bongaon. This document reveals that on 10.01.1975, the executing court ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code. It was only thereafter that the court directed on 16.07.1975, the issue of sale proclamation under Order XXI, Rule 66.33. The above 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 Order XXI, Rule 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 Rule 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 Section 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. It must be pointed out at the cost of repetition that the notice of attachment under Order XXI, Rule 54 was ordered on 10.01.1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on 16.07.1975. It is only thereafter that the first petition under Section 47 was filed on 02.09.1975. Therefore, the appellants cannot compare themselves to the judgment-debtors in T.P. Subba Reddi or Ambati Narasayya (supra).34. As we have pointed out elsewhere, the objection relating to Order XXI, Rule 64 has been raised by the appellants for the first time in the 5th round of litigation in execution. In the 1st round, the appellants exhausted the gun-powder available under Order XXI, Rule 90, by taking recourse to a compromise with the auction purchasers, after alleging material irregularity in the conduct of the auction. The 1st round which commenced in 1979 came to an end in 1992 with the dismissal of SLP(C) No.18092 of 1991. In the order of the High Court dated 20.12.1990 that was under challenge in the said SLP, the High Court made it clear that none of the parties shall have any claim whatsoever as against the auction purchaser in respect of the purchased property (we have extracted this in Para 10 above).35. The 2nd round was kick-started with a suit in Suit No.249 of 1992 for a declaration that the auction sale was void. This is despite the express bar of a separate suit, under Section 47(1) of the Code. But the 2nd round got aborted with the dismissal of the suit due to abatement.36. The 3rd round started with objections to the issue of sale certificate and it came to an end in the year 2001. The 4th round commenced when the auction purchasers moved the executing court for delivery of possession. Delivery was ordered by the executing court on 15.03.2002. This round came to a close with the dismissal of a SLP in the year 2005 and a review petition in the year 2006, arising out of the dismissal of a revision petition challenging the order of the executing court for delivery of possession. It is only thereafter that the 5th round of litigation was started by the appellants by filing a petition under Section 47 and raising the bogey of jurisdictional error on account of non-compliance with the mandate of Order XXI, Rule 64. In other words, the appellants have now exhausted almost all provisions available to a judgment-debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution.