IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE. Dated of Reserve: July 21, Date of Order : September 05, 2008

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Dated of Reserve: July 21, 2008 Date of Order : September 05, 2008 CM(M) No.819/2007 Rajiv Sud...Petitioner Through: Mr. Ravi Gupta with Mr. Ankit Kr. Jain, Advocates Versus Ram Chand Rallan and Ors. Through: Mr. P.D. Gupta, Advocate...Respondents JUSTICE SHIV NARAYAN DHINGRA JUDGMENT: 1. By way of instant petition under Article 227 of the Constitution of India, the petitioner has assailed an order dated 27th April 2007 passed by learned Commercial Civil Judge in an execution case No.182/ Brief facts relevant for the purpose of deciding the instant petition are that in an execution of a decree dated 25th August 1971, the decree holder got immovable property of JD (respondent No.2 herein) attached and prayed for sale of immovable property. Despite the attachment and proclamation of sale, when no amount was paid by the JD, the property measuring 2016 sq. yards forming part of Khasra No.739, Khata No. 34/1293, Village Tuglakabad, New Delhi was put to auction through the Court auctioneer in The said property was purchased by the auction purchaser (petitioner herein) for a sum of Rs.7200/- on 2nd March The bid money was deposited by the auction purchaser and he applied for confirmation of sale. On 29th March, 1979, objections under Order 21 Rule 89 and 90 of CPC read with Section 47 were filed by one Ms. Shakuntala Devi alleging that JD had sold a part of the auctioned land, measuring 420 sq. yards, to her on 18th

2 December 1973 and the possession of the land was also delivered to her. She claimed that the land measuring 420 sq. yards could not have been sold in the public auction. She wanted cancellation of the auction sale to that extent. The objections filed by Ms. Shakuntala Devi were dismissed in default on 16th March 1983, JD (respondent No.2), however, deposited the decreetal amount in the Court on 1st March 1985 and also a solitium of Rs.325/- on 17th May 1985 and applied for setting aside sale. The executing Court passed an order dated 12th July 1985 holding that since JD has paid the decreetal amount to the decree holder, so the amount deposited by the auction purchaser be refunded and the sale of auction property was revoked. Against this order dated 12th July, 1985, the auction purchaser preferred a Civil Revision No.1064 of 1985 before this Court. This Court, vide order dated 15th July 1986 allowed the said revision petition in favour of the auction purchaser and set aside the order dated 12th July 1985 of the executing court and remanded the matter back to the executing court to decide the objections filed by the JD on merits considering the provisions of Order 21 Rules 89 and 90. After the matter was remanded back, the learned Commercial Judge dismissed the objections filed by the judgment debtor on 9th October 2001 held that the auction of the property was in accordance with law. He further observed that the judgment debtor failed to deposit the decreetal amount within the period of 60 days as provided under Order 21 Rule 89 and, therefore, challenge to the auction was not maintainable. The Judgment Debtor preferred an appeal against this order of learned executing court being RC No.20 of 2005 before the Senior Civil Judge. This appeal was dismissed by the Sr. Civil Judge on 28th September On 4th October 2004 one Alok Gupta (Respondent No.3) filed an application under Section 47 read with Section 151 of CPC before the Commercial Judge contended that out of the auction property, a part of property measuring 420 sq. yards was sold by Shri Ram Chand Rallan to smt. Shakuntala Devi on 18th December 1973 and the said Shakuntala Devi being in possession and owner, sold the same for consideration to him (respondent No.3) on through documents like Will, Agreement to Sell, affidavit, GPA etc. He pleaded that since the JD had already paid the decreetal amount to the decree holder, the decree stood satisfied and in support of his contention, he relied upon the decision of the Supreme Court in C.H. Gowda v. M.R. Trumala, (2004) 1 SCC 453. This application was resisted by the auction purchaser who took the stand that the applicant (respondent No.3) had no locus standie to move such an application. He was neither a party to the suit nor the representative of any of the party. No deposit had been made within the period of 60 days from the order of sale. No application under Order

3 Rule 89 was made within a period of 60 days by him and the order dated 16th September 1983 whereby objections of Smt. Shakuntala Devi were dismissed had become final. It was also submitted that in terms of the order dated 15th July 1986 passed by this Court in Civil Revision No of 1985, the sale was to be confirmed on dismissal of objections of the Judgment Debtor. Since the objections of JD had been dismissed, the sale has to be confirmed and the application could not be entertained. However, the Commercial Civil Judge vide the impugned order allowed the application of Mr. Alok Gupta under Section 47 and recorded the satisfaction of the decree, relying on C.H. Gowda's case(supra). The petitioner has preferred this petition assailing the order. 4. The order passed by the executing Court reflects its total disregard for the orders of this Court dated 15th July The Executing Court transgressed all limits of judicial proprietary by re-opening the issue of finality of auction sale, which got settled on dismissal of appeal of the Judgment Debtor by Senior Civil Judge on 28th September The learned Civil Judge could not have reversed the judgment of his predecessor and written a de novo judgment on an application made subsequently by a third party or a stranger. The predecessor of the Commercial Civil Judge had already dismissed the objections of Smt. Shakuntala Devi on 16th September 1983 and thereafter on the case having been remanded back, the objections of the Judgment Debtor were dismissed by the Commercial Judge vide his order dated 9th October On dismissal of the objections of the Judgment Debtor on 9th October 2001, the sale of the property by the Court auctioneer in favour of the auction purchaser became absolute. The question of satisfaction of the decree was already taken note of by the executing court and it is only because the decree was not satisfied by deposit of money by the JD in 1985 that the predecessor of the the present Commercial Civil Judge had dismissed the objections. An appeal against the same preferred by the Judgment Debtor was dismissed by the learned Senior Civil Judge and the matter attained finality. Once the matter had attained finality, the sale stood confirmed by dismissal of objections and dismissal of the appeal against the order, the Commercial Civil Judge thereafter had no jurisdiction to entertain a fresh application again for the purpose of recording satisfaction of the decree. The principle of res judicata would apply in this case. The Commercial Civil Judge exceeded his jurisdiction in re-opening the case and re-considering the fact whether the decree stood satisfied or not. The sale of the property by the Court

4 auctioneer cannot be negatived after lapse of 30 years of auction. Reliance placed by Commercial Civil Judge on C.H. Gowda's case(supra) is also misplaced. In C.H. Gowda's case (supra), the judgment debtor had deposited the entire decreetal amount together with costs to the decree holder within a month from the date of sale and that is why the Hon'ble Supreme Court observed as under: - 9. Execution is of the enforcement, by the process of the Court of its orders and decrees this is in furtherance of the inherent power of the Court to carry out its orders or decrees. Order 21 of CPC deals with the elaborate procedure pertaining to the execution of orders and decrees. Sale is one of the methods employed for execution. Rule 89 of Order 21 is the only means by which a Judgment Debtor can escape from a sale that has been validly carried out. Object of the rule is to provide a last opportunity to put an end to the dispute at the instance of judgment Debtor before the sale is confirmed by the Court and also to save his property from dispossession. Rule 89 postulates two conditions: they are depositing 1). of sum equal to five percent of the purchase money to be paid to the purchaser, 2). of the amount specified in the proclamation of sales less any amount received by the decree holder since the date of such proclamation, in the Court. If these two conditions are satisfied the Court shall make an order for setting aside the sale under Rule 92(2) of Order 21 of CPC on an application made to it. In other words then there will be compliance of Court's order or decree that is sought to be executed. Because the purpose of the Rule 21 is to ensure the carrying out of the orders and decrees of the Court. Once the Judgment Debtor carried out the order or decree of the Court, the execution proceedings will correspondingly come to an end. It is to be noted that the Rule does not provide that the application in a particular form shall be filed to set aside the sale. Even a memo with prayer for setting aside sale is sufficient compliance with the said Rule. Therefore, upon the satisfaction of compliance of conditions as provided under Rule 89, it is mandatory upon Court to set aside the sale under Rule 92. And the Court shall set aside the sale after giving notice under Rule 92(2) to all affected persons. 6. In the present case, the judgment debtor had deposited the amount after about 6 years of the auction sale. The statutory period provided for depositing the decreetal amount is 60 days. The only issue before the executing court even earlier was with regard to the objections filed by the Judgment Debtor whether the decree could be satisfied after depositing of the amount by the judgment debtor after 6 years. The executing court in its earlier order had observed that since the judgment debtor had failed to deposit the decreetal amount within the period of 60 days, the decree could

5 not be stood satisfied. Since this aspect of the matter had become final, the executing Court had no jurisdiction to reopen this aspect of the case. Even if a decision changing legal position is rendered by a superior court after passing of the judgment, the judgment cannot be reopened on this ground by the Executing Court. The only remedy available to the aggrieved person is to approach the next superior Court. 7. The intent and purpose of Order 21 Rule 89 is to provide last opportunity to the judgment debtor to save his property from the sale. Rule 89 postulates two conditions: (1) that the amount equal to 5% of the purchased money is to be paid to the auction purchaser and (2) the amount specified in the proclamation of sale less any amount received by the decree holder since the date of proclamation is to be paid to the decree holder. Both the conditions of payment of the amount and the period of payment within 60 days are to be satisfied by the judgment debtor in order to get the sale aside. Under Rule 92 (2) of Order 21 if the amount is not deposited within 60 days as envisaged by the Rule, the sale cannot be set aside. 8. It is quite evident that the learned Commercial Civil Judge acted beyond his jurisdiction and contrary to the statutory legal position. 9. In the result, the petition is allowed and the impugned order dated 27th April 2007 passed by learned Commercial Civil Judge in an execution case No.182/1972 is hereby set aside. The sale in respect of property auctioned is liable to be confirmed. The Executing Court is directed to confirm the sale and issue confirmation certificate. The money deposited by the Judgment Debtor in the Court after 6 years, be returned to him or may be recovered by him from the decree holder. The auction amount deposited by the auction purchaser may be paid to the decree holder. Sd/- SHIV NARAYAN DHINGRA J.

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