IMPORTANT POINT
Judgment if not erroneous or contrary to law, cannot be interfered.

Judgment

A.K. SIKRI, J.

This case has a chequered history. However, we do not find it necessary to narrate all the events leading to the filing of the present Special Leave Petition, as the issue in the present Special Leave Petition, which arises out of impugned judgment dated 8.6.2004 of the High Court of Calcutta, is a narrow one. In fact, as would be noticed hereafter, the order in question is discretionary in nature and the grievance of the petitioner is that in the facts and circumstances of the present case no such discretion should have been exercised by the High Court thereby granting one more opportunity to the respondents to pay the decretal amount with interest, the effect of which was to nullify the auction of the property in the execution proceedings which was bought by the petitioners herein.

The facts which needs to be traversed for this purpose are recapitulated below: Way back in the year 1965, a money suit No. 20 of 1965 was instituted by one Smt. Bimala Bala Sen, (since deceased) (hereinafter to be referred as the decree holder) for a sum of Rs. 6,100/-, being refund of earnest money. An ex parte decree was passed on 23.12.1967 against Respondent Nos. 1 to 4, 6 and 7 herein (hereinafter to be referred as the judgment debtors). This decree was in the sum of Rs. 6,600/- (Rs. 6,100/- money claimed + Rs. 500/- as cost). The judgment debtors filed an application for setting aside the ex parte decree which was dismissed and appeals there against were also dismissed. This decree thus, became final. Execution Case was filed on 24.9.1970 by the decree holder. In this execution proceedings, some objections were filed by the judgment debtors.

The Executing Court even gave opportunity to the judgment debtors to deposit decretal amount. However, ultimately on 7.7.1990, the property namely 11 Cottahs of land with a two storied pukka building situated at 46 and 48, R.K. Chatterjee Road, Kasba, Calcutta was put to auction and the petitioners were the highest bidders therein with the bid of Rs. 1.5 lakhs. On 9.7.1990, auction sale was confirmed. The petitioner deposited poundage fee alongwith challan of one-fourth of the bid amount i.e. Rs. 37,500/-. On the very next day, one of the judgment debtors namely Respondent No. 4 herein filed an application in the execution case for intimation as to how the decreetal amount be deposited. This petition was however, rejected by the Executing Court on 8.8.1990.

Against this order, Revision Petition was filed before the High Court under Section 115 of the Code of Civil Procedure. On 9.11.1990, it was registered as C.O. 3515/1990. In the meantime, on 12.11.1990, the petitioner deposited entire purchase money and sale certificate was issued in their favour by the Executing Court. 4. The revision petition of the judgment debtors (C.O. 3515/1990) was finally heard by the High Court and allowed on 10.4.1992. The High Court in the said order noted the submission of the judgment debtors to the effect that at the time of auction of the property value thereof was more than Rs. 8,00,000/- which was sold for a partly amount of Rs. 1.5 lakhs. It was also pleaded that as the judgment debtors could not obtain particulars of the auction sale through their lawyers, they could not file an application under Order 21 Rule 89 of C.P.C. for depositing the requisite amount in the execution case and get the sale set aside.

On coming to know of the auction sale, they moved the application for ascertaining the dues for the purpose of filing application under Order 21 Rule 89 of the C.P.C. But the Executing Court instead of giving information put the said application to a future date i.e. on 8.8.1990 and thereafter dismissed the same. The High Court noted the provisions of Rule 89 of Order 21 of the C.P.C., as per which a person interested in setting aside the sale can deposit in Court a sum equal to 5 percent of the auction purchaser and also for payment through the decree holder, the amount specified in the procl