Calcutta High Court (Appellete Side)
Smt. Dipali Biswas & Ors vs Nirmalendu Mukherjee & Ors on 28 March, 2008
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present:
The Hon'ble Mr. Justice
Sadhan Kumar Gupta
C.O. No. 1115 of 2007
Smt. Dipali Biswas & Ors.
Vs.
Nirmalendu Mukherjee & Ors.
Mr. J. Islam,
Mr. Jiban Ratan Chatterjee,
Mr. Zafirul Islam
......... for the petitioners
Mr. Dhruba Bhattacharyya,
Mrs. Lina Roy
......... for the opposite parties.
Heard on: 4/10/2007, 4/12/2007, 20/12/2007, 28/1/2007, 14/2/2008 and
14/3/2008
Judgment on: 28/3/2008.
Sadhan Kumar Gupta, J.
This revisional application has been preferred against the order dated 20th January, 2007 passed by the ld. Civil Judge (Junior Division), Bangaon in Misc. Case no. 15 of 2006 arising out of M. Execution case no. 2 of 1975.
It has been stated in the revisional application that one Rama Rani Debi filed a Money Suit being no. 16 of 1971 in the court of the Munsif, Bangaon against one Sasadhar Biswas for realisation of a sum of Rs.3,000/- from him. Said suit was decreed exparte on 25th July, 1974. Said money decree, for a sum of Rs.3000/-, was put into execution being Money Execution case no. 2 of 1975. Ultimately, in the said execution proceeding, 17 decimals of land, belonging to the judgment debtor Sasadhar Biswas was put into auction for satisfying the decretal amount. The auction sale was held on 30th May, 1979. In the said auction sale one Dulal Mukherjee and Sachin Mukherjee purchased the said land for Rs.5500/- out of which Rs.1500/- was deposited on 6/6/1979 and balance of Rs.4000/- was deposited on 13/6/1979.
The judgment debtor Sasadhar Biswas filed an application under Order XXI Rule 90 read with Section 151 of the Code of Civil Procedure for setting aside the said auction sale on the ground of patent illegalities. Said objection petition was recorded as Misc. Case no. 47 of 1979. In the said Misc. case the judgment debtor and auction purchasers jointly filed a compromise petition on 19/7/1980. It was stated in the said compromise petition that if the judgment debtor pay the dues by 15th of December, 1980, then the auction sale would be set aside. There was no mention of any particular amount in the said compromise petition. As per direction of the court, sherestadar of the court accounted the dues to the extent of Rs.3700/-. On the basis of the said accounting and pursuant to the order of the concerned court, the judgment debtor duly deposited the said amount of Rs.3700/- on 15th December, 1980 and consequently the Misc. case no. 47 of 1979 was disposed of in terms of the compromise petition, on 20/12/1990 on full satisfaction.
In spite of such order, the decree holder and auction purchasers, without preferring any appeal against the said final order dated 20/12/1980, filed an application under Sections 152 and 151 of the Code of Civil Procedure on 22/12/1980. Said application was rejected on 12th September, 1981. The decree holder thereafter withdrew the amount, as deposited, through his advocate and the payment order was passed on 9th November, 1971 without any objection by the auction purchasers. As such, the Money Execution case no. 2 of 1975 and Misc. Case no. 47 of 1979 were fully disposed of before the ld. Trial Court.
Surprisingly, after the said order was passed, the auction purchasers and not the decree holder preferred Civil Rule no. 3577 of 1981 before the High Court challenging the order passed by the ld. Munsif dated 12th September, 1981 rejecting the applications filed under Sections 152 and 151 of the Code of Civil Procedure, as filed by the decree holder and the auction purchasers jointly. In the said revisional application it was suppressed that the decree holder had already withdrawn the amount of Rs.3360/- towards the full satisfaction of the decree and as such, the execution case was no more alive. However, the said revisional application was heard by the High Court exparte and it was sent back on remand for fresh hearing before the ld. Trial Court who after hearing the parties was pleased to reject those petitions by an order dated 11th July, 1987 with the direction upon the Judgment Debtor to deposit Rs.4/- in the account of the decree holder and the auction purchasers and accordingly the amount was deposited on 16th July, 1987. Challenging the said order, the auction purchasers again filed revisional application in the High Court being C.O. no. 2487 of 1987. Said revisional application was heard exparte and on 20th December, 1990 the court held that the judgment debtor was required to deposit Rs.5500/- in the account of the auction purchasers and further direction was passed for return of Rs.3700/- to the judgment debtor. An application for recalling the said exparte order dated 20th December, 1990 was filed by the judgment debtor. But same was rejected by the ld. single Judge. As against this S.L.P. was filed before the Hon'ble Supreme Court, but the said SLP was also rejected on 24/2/1991.
The petitioners being the heirs of the judgment debtor have claimed in this revisional application that they became the victims of circumstances and a very simple situation was made complicated by different orders passed by the court below. The order of the ld. single judge of this court was also obtained by way of misrepresentation and suppression of facts. According to the petitioners since the decree holder withdrew the sum of Rs.3360/- towards full satisfaction of his claim pursuant to the compromise petition filed by the parties there was nothing left to execute in the said Money Execution Case no. 2 of 1975. The petitioners, being the heirs of the original judgment debtor filed an application under Section 47 of the Code of Civil Procedure on 10th February, 2006 which was numbered as Misc. case no. 15 of 2006 before the court below. This misc. case was filed in connection with the Money Execution Case no. 2 of 1975 in which the auction purchasers filed an application on 10th July, 2000 for delivery of possession. Against this, the judgment debtor filed a written objection on 30th August, 2006. In the said proceeding, the heirs of the original auction purchasers also filed an application on 1/2/2006 seeking police protection at the time of delivery of possession and this petition was recorded as Misc. Case no. 11 of 2006. The ld. Civil Judge (Junior Division) Bangaon by his order dated 20th January, 2007 dismissed the Misc. case no. 15 of 2006, as filed by the petitioners under Section 47 of the Code of Civil Procedure and allowed the prayer for police help.
According to the petitioners a big building was constructed over the land in question and the present market value of such property would be not less than Rs.40 lakhs. By passing such order, the ld. Trial Court allowed the heirs of the auction purchasers to get possession of such a valuable property for a meagre sum of Rs.5500/- although, the decree holder already received the amount in question for which the execution case was filed. According to the petitioners, the ld. Trial Court committed illegality by not holding that the prayer for delivery of possession was barred by limitation as per provisions of Article 134 of the Limitation Act since the auction sale was confirmed on 31/1/1994 and the application for delivery of possession was filed on 10/7/2000. This question of law was never decided in earlier proceedings even before the High Court or before the Apex Court. The ld. Judge did not decide this question of limitation and he simply rejected such contention on the ground that this point could not be taken at this belated stage. The observation so made by the ld. Court below is thoroughly illegal, as the petitioners are certainly entitled to raise such legal question at any stage of the proceeding.
Moreover, the petitioners further contended that in an execution case, it is obligatory on the part of the court to decide how much of the property is necessary to satisfy the decree and not to pass an order in respect of the entire property, as proposed to be put in auction to satisfy the decree blindly. So far as the present execution case is concerned, according to the petitioners, the ld. Trial Court failed to appreciate that for satisfying the decretal amount of Rs.3700/- entire property consisting of 17 decimals of land need not be put into auction. Only if a part of the said property was put into auction, then that would have served the purpose of the execution case. By not considering this aspect, which the executing court is bound to consider as per provisions of Order XXI Rule 64 of the Code of Civil Procedure, the ld. Trial Court committed a gross illegality and as such, the impugned order is liable to be set aside, as the ld. court below failed to exercise the jurisdiction properly, so vested in him. As the petitioners are aggrieved by the impugned order, as passed by the ld. Trial Court in connection with Money Execution case no. 2 of 1975, so this revisional application has been preferred praying for setting aside the said order.
The revisional application was contested by the opposite parties/heirs of the auction purchasers by filing affidavit-in-opposition, wherein the material allegations have been denied. According to the opposite parties the matter was pending since 1975 and after the property in question was sold in auction, as the judgment debtor failed to pay the decretal amount, since then the judgment debtor and thereafter his heirs, the present petitioners, took various steps to frustrate the said auction sale by preferring revisional applications in the High Court as well as by filing SLP before the Supreme Court. In all the forums the claim of the petitioners was rejected and as such, after the lapse of 30 years it is now not permissible for the petitioners to allege that the auction sale was done fraudulently by way of misrepresentation and fraud and by suppressing material facts. According to the opposite parties ,there is now no scope to consider all those claims, since the matter was set at rest by the order of the High Court and which was confirmed by the Apex Court. They have further claimed that the question of limitation, as raised by the petitioners before the court below, is absolutely redundant since after the auction sale was confirmed, further steps could not be taken as because the petitioners preferred revisional applications one after another. When the matter was finally decided by the High Court in the year 2000, the opposite parties filed petition praying for delivery of possession in their favour. As such, the opposite parties claimed that it cannot be said that the application for delivery of possession was barred by lilmitation, as claimed by the petitioners. They have prayed for dismissal of the revisional application.
I have given my anxious consideration to the submissions made by the ld. advocates for both the sides. From the submission, as made at the bar as well as from the petition and affidavit-in-opposition, it appears that due to non-payment of the money, the money execution case no. 2 of 1975 was started. In the said proceeding the property in question of the judgment debtor was put for auction sale. In the said sale, the opposite parties purchased the property for a sum of Rs.5500/-. It further appears that the judgment debtor challenged the sale under Order XXI rule 90 of the Code of Civil Procedure but same was rejected.
After the said order was passed, it appears that the parties entered into a settlement in between them, wherein it was decided that in the event of the entire dues of the auction purchasers were paid by 15th December, 1980 by the judgment debtor, then the opposite parties/auction purchasers would not raise any further claim in respect of the property in question. It appears that the judgment debtor deposited a sum of Rs.3700/- which was withdrawn by the decree holder. But trouble started thereafter as the opposite parties/auction purchasers refused to treat the deposit as sufficient on the ground that the petitioners failed to deposit Rs.5500/- in time, and therefore, the compromise, as arrived at between the parties actually failed. Under such circumstances, the opposite parties proceeded with the execution case with a prayer for recovery of possession of the property. But as the executing court dismissed such application, so the opposite parties moved the High Court when the ld. single Judge by the order dated 20th December, 1990 held:
"In view of the compromise petition and the failure of deposit in accordance with the compromise petition it is quite clear that the auction purchase made by the applicant before me is confirmed and finalised and is unassailable today".
As this order was passed exparte, the petitioners prayed for recalling the said order and as such, the matter was again considered by the ld. single Judge and the prayer for recalling was rejected. As against this, a SLP was moved before the Supreme Court which was also dismissed by the order dated 24th February, 1992. It appears that after the dismissal of the SLP, the opposite parties have taken further steps seeking delivery of possession. Against this, the petitioners filed objection and said objection was rejected by the ld. Executing Court and writ of delivery of possession was issued. The petitioners approached the District Judge, who refused to interfere. Against the said order of refusal, the petitioners filed another revisional application which was considered by Hon'ble Justice G.C. Gupta of this Court and by his order, His Lordship was pleased to observe that in view of the fact that several revisional applications in this respect were rejected by the High Court and those orders were confirmed by the Apex Court by rejecting the SLPs, so it was not proper for him to interfere at that stage regard being had to the judicial decorum. Accordingly His Lordship was pleased to dismiss the application.
Thereafter the petitioners again moved the executing court by filing petition claiming therein that the delivery of possession of the property should not be given in favour of the opposite parties/auction purchasers as auction sale was not done properly and as the said prayer of delivery of possession was barred by limitation. The ld. Executing Court, by his impugned order, rejected such prayer and against such rejection order, this revisional application has been preferred.
So it appears that time and again, the petitioners tried their best to challenge the validity of the auction sale, but failed. It appears from the order dated 20th December, 1990 the Hon'ble Justice Ajay Nath Ray (as His Lordship then was) was pleased to observe "In view of the compromise petition and the failure of deposit in accordance with the compromise petition it is quite clear that the auction purchase made by the applicant before me is confirmed and finalised and is unassailable today". His Lordship further observed that "This application succeeds and the applicant is declared as a final confirmed purchaser of the property in question for a sum of Rs.5500/- which has already been deposited by him in court". Again in the said order it was observed that the auction purchasers became absolute owners of the property on and from the expiry of 15th December, 1980. An application for recalling of that order was made before His Lordship which was also rejected. In the said recalling order His Lordship further observed "Thus, the good sale stood and continued to be good. After a passage of 11 years, it would be extremely unjust to permit the first opposite parties to take a completely different stand and urge the alternative plea that the tender of Rs.3700/- was by way of a mistake and that if given a chance they would now tender the balance amount".
It is needless to mention that the order, as passed by the ld. Single Judge was confirmed by the Hon'ble Apex Court when the SLP was rejected. Be that as it may, there cannot be any doubt that in view of such decision, as passed by the ld. Single Judge, there is now no scope for this Court to hold that there was illegality in the auction sale. It further appears that further attempt was made to knock the door of the High Court challenging the said auction sale. But by the order dated 5/9/2001 Hon'ble Justice P.K. Samanta (as His Lordship then was) was pleased to hold that since the auction was considered to be good and valid there could not be any reason for refusal for issuance of sale certificate and for delivery of possession pursuant to such auction sale. By making such observation the revisional application was dismissed by His Lordship. So in view of all those decisions, there cannot be any doubt that it is now not permissible for the judgment debtor and his heirs to re-agitate all those claims again before this Court.
It appears that after those orders were passed, steps were taken for taking delivery of possession and the ld. executing court directed for police help for giving delivery of possession in favour of the auction purchasers after rejecting the objection, as made by the petitioners. Present revisional application has been filed challenging that rejection order. Ld. Advocate for the petitioners strenuously argued that there was no intention on the part of the judgment debtor not to deposit Rs.5500/- as per the terms of solenama. According to him, the judgment debtor deposited Rs.3700/- in the court as he was misled by the note of the Chief Ministerial Officer of the Court. In fact an attempt has been made to show that as Chief Ministerial Officer gave a note to the effect that the judgment debtor was to deposit Rs.3700/- only, so that amount was deposited by the judgment debtor and not the amount of Rs.5500/-, as agreed in the solenama. In this respect ld. Advocate for the petitioners further argued that in the solenama there was no mention about the actual amount to be deposited. But it appears from the judgment dated 8th August, 1991 passed by Hon'ble Justice A. N. Ray (as His Lordship then was) in Civil Revision no. 2487 of 1987 that this question was thoroughly discussed and His Lordship was pleased to observe that as per the solenama the judgment debtor was to deposit Rs.5500/- and not Rs.3700/-, as claimed by the petitioners. His Lordship further observed that since the judgment debtor failed to deposit such amount, so he could not get any advantage of the said solenama which became non-est due to non-compliance of its terms. I have already pointed out that this decision of the ld. Single Judge was confirmed by the Supreme Court and as such, it is now not permissible for this court to reopen the matter by way of allowing the petitioners to justify their claim that the auction sale was invalid in the eye of law.
Ld. advocate for the petitioners further argued that the auction purchasers suppressed some material facts before the Executing court as well as before the High Court and as such, managed to obtain such order by practising fraud upon the court. According to him, since fraud has been practised in obtaining such order, it is always open for the High Court to reopen the matter at any stage in order to do justice in between the parties. In support of his contention, ld. advocate for the petitioners cited decisions reported in 1991 SC 1726 (G. Narayanswami Reddy vs. Govt. of Karnataka & Anr.) and AIR 1994 SC 853 (S. P. Chengal Varaya Naidu vs. Jagannath & Ors.). It appears from the facts of these decisions, there was clear proof regarding suppression of the material fact and as such the Supreme Court on that ground alone was pleased to reject the SLP. The fact of the said case is in no way relevant so far as this hearing is concerned. That apart, I find that there is no suppression of material fact so far as this matter is concerned. According to the ld. advocate for the petitioners, auction purchasers did not mention before the Court that the decree holder actually withdrew the amount so deposited in the court by the judgment debtor. But due to this reason it cannot be said that there was material suppression of fact. The record was before the Court and as such it was always open for the court to peruse the record and to come to a conclusion to that effect. Moreover, there was no bar for the judgment debtor to point out before the ld. Single Judge regarding this fact of withdrawal of money by the decree-holder. Even when recalling petition was heard, at that time also there was no attempt on the part of the judgment debtor to point out this alleged material suppression of fact before the ld. single Judge. As such, I think that the allegation that fraud was practised upon the court due to the suppression of material fact, as alleged by the petitioners, cannot be accepted and so this claim of the petitioners is rejected.
Mr. Chatterjee, ld. senior advocate for the petitioners, argued that the money decree was passed for Rs.3000/- only and the total area of the property which was put into auction was 17 decimals. According to him the value of 17 decimals of land could not be Rs.3000/- at the material time. According to him, the Executing Court committed grave mistake by putting the entire property in auction instead of putting part of the same in auction in order to satisfy the decree. In this respect he has drawn my attention to the provisions of Order XXI Rule 64 of the Code of Civil Procedure. It is relevant to quote the provisions of Order XXI Rule 64 Code of Civil Procedure which runs as follows:
" Order XXI, Rule 64: Power to order property attached to be sold and proceeds to be paid to persons entitled - Any Court executing a decree may 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."
So it appears from this provision that a court is duty bound to put that much of the property in auction, that would satisfy the decree instead of blindly putting the entire property in auction, as claimed by the judgment debtor. There cannot be any dispute to this legal proposition. Mr. Chatterjee, ld. senior advocate for the petitioners, argued that it is palpably clear that the court did not apply its mind while putting the entire 17 decimals of property in auction for realisation of decretal amount of Rs.3000/- only. In this respect he has relied upon the decision reported in AIR 1990 SC 119 (Ambati Narasayya vs. M. Subba Rao & Anr.). By citing another decision reported in (2003) 8 SCC 9 (Deb Singh vs. Punjan Tourism Development Corporation Ltd. & Anr.) he argued that if any action on the part of any authority shocks the judicial conscience, then the court must interfere into the matter. I have considered those decisions and it appears to me that those decisions would have been helpful for the petitioners if those points were argued before the court below at the material time. But I have already pointed out that when the auction took place at that time this point was not taken by the petitioners and in my considered opinion after the lapse of 30 years it is not permissible for the petitioners to raise this point afresh before this Court in order to frustrate the purchase, as was made by the auction purchasers more than 30 years before, particularly when the said purchase was confirmed by the High Court as well as by the Supreme Court. Even this point was never taken when the revisional applications were heard by the High Court. Under such circumstances, I am unable to accept this argument of Mr. Chatterjee at this stage in order to hold that the auction sale, as took place 30 years before, was bad in the eye of law.
Ld. advocate for the petitioners further argued that prayer of delivery of possession, as made by the auction purchasers before the Executing Court is hopelessly barred by limitation, as it was filed more than one year after the sale was confirmed. Mr. Chatterjee argued that this point was taken before the ld. court below. But the ld. court below did not consider this point at all in his order, as according to him, in view of the judgments passed by the High Court and the Supreme Court, he could not consider this point at that stage. Mr. Chatterjee submits that it is a point of law and it can be taken at any stage. In this respect he has cited decisions reported in AIR 2006 Allahabad 45 (Abdul Rahaman vs. 5th Additional District Judge, Fatehpur & Ors.) and AIR 1987 SC 1443 (Ganpat Singh vs. Kailash Shankar & Ors.). It appears that as per the provisions of Limitation Act the prayer for delivery of possession in respect of a property purchased in auction, must be filed within one year from the date of confirmation of the sale. So far as the present case is concerned, it appears that auction sale was confirmed on 31/1/1994 and the petition for delivery of possession was filed on 10/7/2000. As such apparently it appears that the application praying for delivery of possession is hit by the provisions of the Limitation Act. Under such circumstances, Mr. Chatterjee, ld. senior advocate for the petitioners, argued that the order, as passed by the court below, allowing delivery of possession through police help, is a nullity and should immediately be set aside.
As against this Mr. Bhattacharjee, ld. advocate for the opposite parties pointed out that this question of limitation was not agitated by the petitioners during this last 30 years and as such, it is now not open for the petitioners to agitate this point afresh. But in view of the decisions, as cited above, I am of opinion that this can always be agitated at any stage by the petitioners and if it is agitated, then it is the duty of the court to pass appropriate order on such claim. I have already pointed out that prima-facie it appears that the prayer for delivery of possession was made by the auction purchasers after the expiry of one year from the date when the auction sale was confirmed. But it appears from the materials on record that although the sale was confirmed on 31st January, 1994 no prayer for delivery of possession could be made by the auction purchasers as the execution proceeding was stayed as several revisional applications were preferred before the High Court one after another and also the matter was taken to the Hon'ble Supreme Court at the instance of the petitioners. As soon as the stay order was vacated, the auction purchasers filed the application praying for delivery of possession before the ld. Executing Court. I find no illegality in this respect. To my mind, it is now not open for the petitioners to take advantage of this situation when in fact said situation was created by their actions when they obtained stay order by filing different applications before the District Court as well as before the High Court. I have already pointed out that the auction purchasers purchased the property in auction, conducted by the Court, more than 30 years before and for no fault on their part they were deprived of enjoying the fruit of this purchase. If after the lapse of more than 30 years, the petitioners are allowed to frustrate this auction purchase, as done by the auction purchasers/opposite parties, then it will be nothing but travesty of justice, which should not be allowed in the interest of justice.
Considering all these things, I am of opinion that there is no merit in this revisional application and as such, I am not at all inclined to interfere with the impugned order, as passed by the ld. court below. To my mind, the revisional application is liable to be rejected.
In the result, the revisional application is dismissed on contest. The interim order, if any, stands vacated.
Send a copy of this judgment to the Court below at once for information and necessary action.
Xerox certified copy, if applied for, be handed over to the parties on urgent basis.
(SADHAN KUMAR GUPTA, J.)