NDLI: Dipali Biswas & Ors. Vs. Nirmalendu Mukherjee & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Code of Civil Procedure
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Code of Civil Procedure, 1908 (5 of 1908)
Case(s) Referred	Referred Case 0 Referred Case 1
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Code of Civil Procedure, 1908: Or.21 r. 64 – Execution of money decree – Attachment of 117 decimal of land (app. 7450 sq. feet) – Sale proclamation – Auction sale – Issuance of Sale Certificate – Application by auction purchaser seeking delivery of possession allowed by executing court – However, meanwhile judgment debtor constructed building on the land sold – Executing court ordered demolition – The said order attained finality – Judgment debtor started fresh round of litigation by moving petition before the executing court under s.47 of the Code, on the ground that the mandate of Or.XXI r.64 was not followed in the auction and that therefore a jurisdictional error has crept in – Executing court dismissed the petition – High Court dismissed revision by judgment debtor on the ground that the issue, never having been raised earlier, cannot be allowed to be raised at this distance of time – Aggrieved judgment debtor filed instant appeal – Held: The 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 Or.XXI, r.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 r.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 s.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 or its layout, its dimensions on all sides and the possibility of dividing the same into two or more pieces, with a view to sell one or more of those pieces for the realisation of the decree debt – s.65 of the Code says that, “where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute” – The sale of a property becomes absolute under Or.XXI, r.92(1) after an application made under rr.89, 90 or 91 is disallowed and the court passes an order confirming the same – After the sale of an immovable property becomes absolute in terms of Or.XXI, r.92(1), the Court has to grant a certificate under r. 94 bearing the date and the day on which the sale became absolute – Thus a conjoint reading of s.65, Or.XXI, r.92 and Or. XXI, r.94 would show that it passes through three important stages (other than certain intervening stages), conduct of sale; sale becoming absolute; and issue of sale certificate – After all these three stages are crossed, the fourth stage of delivery of possession comes under r.95 of Or.XXI – It is at this fourth stage that the appellants have raised the objection relating to Or.XXI, r.64 – It is not as if the judgment debtor was not aware of the fact that the property in entirety was included in the proclamation of sale – Therefore, the claim on the basis of Or.XXI, r. 64 was rightly rejected by the High Court. Code of Civil Procedure, 1908: s.11 – Applicability of, to execution proceedings – Original judgment debtor filed a petition under s.47, way back on 02.09.1975 – Second petition under s.47 thus will be barred by res judicata – Before Act 104 of 1976 came into force, there was one view that the provisions of s.11 of the Code had no application to execution proceedings – But under Act 104 of 1976 Explanation VII was inserted under s.11 and it says that the provisions of this Section shall apply to a proceeding for the execution of a decree and reference in this Section to any suit, issue or former suit shall be construed as references to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree – Res judicata.
Judge	Hon'ble Mr. Justice V. Ramasubramanian
Neutral Citation	2021 INSC 616
Petitioner	Dipali Biswas & Ors.
Respondent	Nirmalendu Mukherjee & Ors.
SCR	[2021] 10 S.C.R. 216
Judgement Date	2021-10-05
Case Number	4557

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Dipali Biswas & Ors. Vs. Nirmalendu Mukherjee & Ors.

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