IMPORTANT POINT
Execution of decree – Judgment-debtor cannot be allowed to raise objections as to method of execution in instalments.

JUDGMENT :

V. Ramasubramanian, J.

1. Challenging the order of the High Court confirming the order of the Executing Court dismissing their application under Section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’), the legal representatives of the judgment­debtor have come up with the above appeal. Incidentally, this litigation is exactly half a century old (it started with a suit filed in 1971) and this appeal arises out of the fifth round of litigation at the stage of execution of a simple money decree and we wish that it is the knock out round.

2. We have heard Mr. Rauf Rahim, learned counsel for the appellants, and Mr. Raja Chatterjee, learned counsel appearing for the respondent nos.1­7/auction purchasers.

3. One Ms. Rama Rani Devi, filed a simple suit for recovery of money in Money Suit No.16 of 1971 on the file of the District Munsif Court, Bongaon, District 24 Parganas, West Bengal, against one Sasadhar Biswas, for recovery of a sum of Rs.3000/­. The suit was decreed ex parte on 25.07.1974, directing the defendant to pay the decretal amount in six equal instalments with a default clause.

4. Since the decree was not honoured, the decree holder filed an execution petition in Execution Case No.2 of 1975, praying for the attachment and sale of 17 decimal of land (approximately about 7450 Sq.ft.) in Plot No.26/159 under Khatian No.2555 of Mouza Bongaon. It appears that a sale proclamation was issued by the executing court on 16.07.1975 after which Sasadhar Biswas, the Judgment­debtor filed an application in Miscellaneous Case No.151 of 1975 assailing the sale proclamation issued by the executing court, on the ground of material irregularity and fraud. But the same was dismissed on 03.09.1975.

5. An auction sale was held on 30.05.1979, in which two brothers by name, Sachindra Nath Mukherjee and Dulal Kanti Mukherjee became the highest bidders, they having offered a sum of Rs.5500/­, as the highest bid amount. The highest bidders also deposited the money into court.

First round

6. Mr. Sasadhar Biswas, the judgment­debtor then filed an application on 27.06.1979 under Order XXI, Rule 90 read with Section 152 of the Code praying for setting aside the auction sale on the ground of irregularities in the sale proclamation. During the pendency of this petition in Miscellaneous Case No.47 of 1979, the judgment­debtor Sasadhar Biswas entered into a compromise on 19.07.1980, not with the decree holder but with the auction purchasers. The memo of compromise reads as follows:­

“The petitioner and the auction purchaser Opp. party do settle the suit mutually in the following manner.

(1) If the petitioner debtor pays the entire money due to the auction purchaser opposite part in cash within 15th December or if he deposits it in their credit in the court and the auction shall be revoked and the original execution case shall be disposed on full satisfaction.

(2) Otherwise that is if the petitioner debtor does not pay the entire money due to the auction purchaser opposite party in cash within 15th December on deposits that amount in court within that date then the said auction shall remain effective and this present suit shall be dismissed with costs.

Hence it is prayed that according to the contents of this solenama and for compliance with the conditions of the solenama the final date of this suit may be kept on 16.12.80 on the expiry of the 15th December.”

7. It is relevant to point out that the amount of money deposited by the auction purchasers into court was Rs.5500/­, but the decree debt was around Rs.3360/­. Though the compromise memo entered into by the judgment­debtor with the auction purchasers did not refer to the decree debt, but repeatedly mentioned the words, “entire money due to the auction purchasers”, the judgment­debtor admittedly deposited on 15.12.1980, only a sum of Rs.3700/­, purportedly on the basis of the calculation provided by the court officer in terms of Order XXI, Rule 89 of the Code.

8. Since the d