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SUPREME COURT OF INDIA
Y.V. CHANDRACHUD, R.S. SARKARIA AND A.C. GUPTA, JJ.
Gopal Krishan Das, Appellant
Versus
Sailendra Nath Biswas and another, Respondents.
Civil Appeals Nos. 10, 2332 and 2333 of 1968, D/- 26-2-1975.
Advocates appeared
M/s. P. K. Sen and G. S. Chatterjee, for Appellant; M/s. A. K Sen and P. K. Chatterjee, Sr. Advocates. (Mr. Rathin Das and Mrs. Anjana Sen,with them), for Respondent No, 1.
-the application of this rule is limited to cases in which the deficiency of price has occurred by reason of the auction purchaser’s default. Property once put to sale in execution proceedings may have to be resold for reasons which may or may not be connected with the default of the auction purchaser -
-the provisions of this rule come into play only if the property is required to be re-sold on account of the default of the auction purchaser. If the re-sale is not due to the auction purchaser’s default, there can be no question of mulcting him with the deficiency in the price realised in the re-sale
-the speedy remedy to be provided by this Rule will lose its meaning and purpose if the executing court seized of the claim against the alleged defaulting purchaser has to embark upon a comparative evaluation of the cause that led to the deficiency in the price. Such meat is not for the executing court -
-this rule is intended to provide an expeditious remedy to the judgment-debtor or the decree-holder who has suffered a detriment due to the default of the action purchaser -
-is whether the deficiency can be attributed to the default of the auction purchaser or whether it can be reasonably attributed to any other circumventing circumstance. This is not a case in which the auction purchaser can be said to be taking advantage of his own wrong. He can not therefore be estopped from contending that the disclosure of the encumbrance is the operative cause of the fall in price -
-the officer or other person holding the sale has to certify to the court the deficiency of price which on the re-sale has happened by reason of the purchaser’s default and all expenses attending the re-sale. Upon such certification the amount becomes recoverable from the defaulting purchaser at the instance of the decree-holder or the judgment debtor, “under the provisions relating to the execution of a decree for the payment of money.” The Code has not made the certificate conclusive of the facts stated therein and consequently it is permissible who is alleged to have defaulted to challenge the correctness of the certificate in all its particulars. But the object of certification as evidenced even more clearly by the provision that the proceeding to recover the amount will be governed by provisions relating to the execution of a money decree, is to eschew an elaborate inquiry into the competing causes culminating in the deficiency of price. This object can be achieved only if the property successively put to sale is in material respects identical, that is to say, if the right, title and interest of the judgment debtor is put to sale under substantially the same description. If that happens it is easy to predicate that the deficiency of price has resulted on account of the purchaser’s default. If what was shown as unencumbered in the previous proclamation is expressly described in the later proclamation as being subject to an encumbrance which on a reasonable assessment, is calculated to affect the marked value of the property, the proceeding ceases to be a simple enough matter like the execution of a money decree and assumes the form of a contentious claim open to diverse defences as in a substantive suit -
Judgment
CHANDRACHUD, J.:- Premises No. 4-A. Chowringhee Road, Calcutta, belonged to the appellant Gopal Krishna Das and four others, each having an undivided one-fifth share therein. In 1951, one Ganga Prosad Gupta obtained two money-decrees against the appellant and another person in the total sum of Rs. 12,378. In execution of these decrees, the undivided one-fifth share of the appellant was put to sale on June 16, 1954 and was purchased by Pashupati Nath Biswas, the father of the first respondent, for Rs. 77,040. Pashupati Nath Biswas deposited Rs. 19,260 in the Court, being 25% of the purchase price and later he deposited a further sum of Rs. 15,000. He, however, failed to pay the balance of the purchase price whereupon the appellant made an application that the property be put to a fresh sale. Accordingly, the property was put to sale on March 20, 1957 and once again Pashupati Nath Biswas was the highest bidder. But whereas in the first sale he had offered a bid of Rs. 77,040 this time the sale was knocked down in his favour for a paltry sum of Rs. 700. The second sale was confirmed on May 29, 1957.
2. In the meanwhile, on May 16, 1957 the Sheriff certified under Order XXI, Rule 71 of the Code of Civil Procedure that the deficiency in the price realised in the second sale due to the default of the auction purchaser, after giving him credit in the sum of Rs. 15,000 paid by him in the first sale, amounted to Rs. 61,340 apart from the cost and expenses of the sales.
3. On June 28, 1957 the appellant made an application under Order XXI, Rule 71 C.P.C. for recovering the deficiency from Pashupati Nath Biswas. A learned single Judge of the Calcutta High Court allowed that application and directed by an order dated August 19, 1958 that Pashupati Nath Biswas do pay to the appellant a sum of Rs. 42,080 with interest at 6% per annum. This order was challenged by Pashupati Nath Biswas in Appeal No. 10 of 1959.
4. The auction purchaser had also filed an application asking that the appellant be restrained from taking execution proceedings for recovering the deficiency in price. That prayer was rejected. It may be mentioned that pursuant to an application dated April 13, 1957 filed by the auction purchaser himself, it was directed by an order dated May 21, 1957 that a sum of Rs. 22,000 be paid by the Sheriff out of the sale proceeds lying with him, to the Official Receiver in satisfaction of the decree obtained by Ganga Prosad Gupta against the appellant, in execution of which the two sales were held. Ganga Prosad Gupta s estate it seems, had come to be vested in the Official Receiver, who is the second respondent to these appeals. The auction purchaser prayed that the Sheriff do pay to him the balance after deducting therefrom the sum of Rs. 22,000 and the cost and the expenses of the Sheriff. This prayer was also rejected. The auction purchaser filed Appeal No. 9 of 1959 against the order rejecting this application.
5. The appellant then filed an application for an order directing that the Sheriff do pay to him all the moneys lying with him after deducting the cost and the expenses of the sales. That application was allowed by the learned single Judge on December 11, 1958. The auction purchaser challenged that order in Appeal No. 43 of 1959.
6. The three appeals were heard together and disposed of by a Division Bench of the Calcutta High Court by three separate judgments. By its judgment dated March 21, 1967 the Division Bench allowed appeal No. 10 of 1959 and dismissed the application filed by the appellant under Order XXI, Rule 71 for recovering from the auction purchaser the deficiency in the sale price. The two other appeals were disposed of consistently with that judgment. The auction purchaser Pashupati Nath Biswas having died on April 16, 1964, the first respondent Sailendra Nath Biswas came on the record of the appeals as his Executor and legal representative. On December 15, 1967 the High Court granted to the appellant leave to
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