Astonished by the five series of litigation initiated by a litigant (and his successors) over five decades to block the execution of a civil decree, the Supreme Court noted that it was appropriate to include in the program of the faculty of law as study material. students to adopt the various provisions of the Code of Civil Procedure relating to enforcement.

“… the present case is suitable for inclusion in the curriculum of a law school as study material for students to familiarize themselves with the various provisions of the Code relating to enforcement”, the judgment rendered by a chamber comprising Judges Hemant Gupta and V Ramasubramanian observed.

The judgment drafted by Judge Ramasubramanian is interspersed with several witty remarks about the nature of the dispute. The party succeeded in falsely invoking the provisions of the Code of Civil Procedure at different stages to block the enforcement proceedings in a decree taken in a cash action filed in 1971 for the recovery of a sum of Rs 3000.

“..this appeal results from the fifth round of litigation at the stage of the execution of a simple monetary decree and we want it to be the knockout round “, the Supreme Court ruling said at the start.

The judgment compared the party to “the indefatigable Vikramaditya, who repeatedly tried to capture ‘Betal’.”

Substantive facts

The lawsuit was filed in 1971 against a certain Sasadhar Biswas (predecessor of the appellants to the Supreme Court) in 1971 for recovering an amount of 3,000 rupees. It was decreed ex-parte in 1974.

Enforcement proceedings were filed in 1975 against the property of Biswas. After the proclamation of sale was filed against his property measuring approximately 7,450 square feet, Biswas filed an application to quash the proclamation of sale alleging “material irregularity and fraud” in issuing the proclamation. He was rejected.

The auction took place in 1979 for an auction amount of Rs 5,500. After that, the first round of litigation began. Biswas filed an application under Order XXI, Rule 90 read with Section 152 of the Code, requesting that the auction be canceled on the grounds of irregularities in the proclamation of the sale.

While this request was pending, Biswas reached a compromise with the auction buyers. But he did not deposit the full amount. However, the Court closed the enforcement proceedings with full satisfaction. Against this, the auction buyers filed a claim. This series of disputes extended to the Supreme Court over a period of almost 13 years. The end result was that the auction was confirmed.

Without giving up, the litigant then filed a new action for nullity of the auction. It was dismissed as mitigated. At the same time, Biswas filed a petition for review challenging the certificate of sale issued to auction buyers, which was ultimately rejected by the High Court after seven years in 2001.

Meanwhile, Biswas had constructed a building in the costume’s property. In 2002, the court of first instance allowed an application filed by the auction buyers asking for the return of possession of the property after the building was demolished.

At that point, Biswas expired and it was up to his legal representatives to continue the challenge. They appealed the order authorizing the return of possession.

It also spread to the Supreme Court and ended with the dismissal of the SLP in 2006.

Subsequently, the legal representatives filed a new claim under article 47 of the Code of Civil Procedure on the grounds that the sale did not follow the mandate of rule 64 of CPC Ordinance XXI. Rule 64 states, in essence, that only that part of the property is to be sold so as to satisfy the amount of the decree.

The Supreme Court described this development in these terms:

“In order not to be discouraged by repeated failures, callers here, like the indefatigable Vikramaditya, (who repeatedly tried to capture ‘Betal’) started this round (hopefully the last round), by filing a petition in miscellaneous case no.15 of 2006 to the enforcement court under article 47 of the Code, on the grounds that the mandate of Ordinance XXI, rule 64 was not followed during auction and that a jurisdictional error therefore crept in and that this could be corrected at any time and at any stage of the procedure “.

Ultimately, this was dismissed at the Magistrate Court, Court of Appeal and High Court stages, and the case went to the Supreme Court. The Supreme Court dismissed the civil appeal after almost 9 years of proceedings.

The Supreme Court’s analysis

On the merits, the Supreme Court dismissed the case for the following reasons:

1. The objection to Article 64 was not raised in previous rounds and was first raised in 2006.

2. The party has had sufficient opportunities to raise the dispute in previous rounds.

3. In any event, the property in question was only 7,450 square feet, not divisible.

4. The principle of res judicata under Article 11 of the CPC also applies to enforcement proceedings.

Judge Ramasubramanian said in the judgment that the appellant did not consider this ground until he had exhausted “the gunpowder available under Order XXI, rule 90”.

“In other words, the appellants have now exhausted almost all the provisions available to a judgment debtor for delaying execution and the case at hand is worthy of being included in the curriculum of a law school in as study material for students to equip themselves with the various provisions of the Code relating to execution ”.

The judgment debtor cannot be allowed to raise objections to the phased execution

In concluding, the judgment also made this important observation:

“A judgment debtor cannot be allowed to raise objections to the structured execution method. Having failed to raise the issue in four previous litigation proceedings, appellants cannot be permitted to raise it now.”

Case details

Case Title: Dipali Biswas and Others v Nirmalendu Mukherjee and Others | CA 4557/2012

Reference: LL 2021 SC 538

Click here to read / download the judgment


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