DIPALI BISWAS & ORS.versusNIRMALENDU MUKHERJEE & ORS.

216                      [2021]REPORTS
               SUPREME COURT   10 S.C.R. 216               [2021] 10 S.C.R.


A                          DIPALI BISWAS & ORS.
                                        v.
                    NIRMALENDU MUKHERJEE & ORS.
                         (Civil Appeal No. 4557 of 2012)
B                             OCTOBER 05, 2021
        [HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
             Code of Civil Procedure, 1908: Or.21 r. 64 – Execution of
      money decree – Attachment of 117 decimal of land (app. 7450 sq.
      feet) – Sale proclamation – Auction sale – Issuance of Sale
C
      Certificate – Application by auction purchaser seeking delivery of
      possession allowed by executing court – However, meanwhile
      judgment debtor constructed building on the land sold – Executing
      court ordered demolition – The said order attained finality –
      Judgment debtor started fresh round of litigation by moving petition
D     before the executing court under s.47 of the Code, on the ground
      that the mandate of Or.XXI r.64 was not followed in the auction and
      that therefore a jurisdictional error has crept in – Executing court
      dismissed the petition – High Court dismissed revision by judgment
      debtor on the ground that the issue, never having been raised earlier,
      cannot be allowed to be raised at this distance of time – Aggrieved
E
      judgment debtor filed instant appeal – Held: The sequence of events
      would show that the judgment debtor had sufficient opportunity to
      object to the inclusion of the entire property when an order was
      passed under Or.XXI, r.54 – Subsequently, he had an opportunity
      to object to the inclusion of the whole of the property, by taking
F     advantage of the amended clause (a) of sub rule (2) of r.66 of Order
      XXI, which speaks about a part of the property that would be
      sufficient to satisfy the decree – But the judgment debtor despite
      filing a petition under s.47 on 02.09.1975, did not point out how
      the property being a vacant land of an extent of 17 decimals could
      have been divided or its layout, its dimensions on all sides and the
G
      possibility of dividing the same into two or more pieces, with a view
      to sell one or more of those pieces for the realisation of the decree
      debt – s.65 of the Code says that, “where immovable property is
      sold in execution of a decree and such sale has become absolute,
      the property shall be deemed to have vested in the purchaser from
H     the time when the property is sold and not from the time when the
                                       216
  DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.                        217


sale becomes absolute” – The sale of a property becomes absolute             A
under Or.XXI, r.92(1) after an application made under rr.89, 90 or
91 is disallowed and the court passes an order confirming the same
– After the sale of an immovable property becomes absolute in terms
of Or.XXI, r.92(1), the Court has to grant a certificate under r. 94
bearing the date and the day on which the sale became absolute –
                                                                             B
Thus a conjoint reading of s.65, Or.XXI, r.92 and Or. XXI, r.94 would
show that it passes through three important stages (other than certain
intervening stages), conduct of sale; sale becoming absolute; and
issue of sale certificate – After all these three stages are crossed,
the fourth stage of delivery of possession comes under r.95 of Or.XXI
– It is at this fourth stage that the appellants have raised the objection   C
relating to Or.XXI, r.64 – It is not as if the judgment debtor was not
aware of the fact that the property in entirety was included in the
proclamation of sale – Therefore, the claim on the basis of Or.XXI,
r. 64 was rightly rejected by the High Court.
       Code of Civil Procedure, 1908: s.11 – Applicability of, to            D
execution proceedings – Original judgment debtor filed a petition
under s.47, way back on 02.09.1975 – Second petition under s.47
thus will be barred by res judicata – Before Act 104 of 1976 came
into force, there was one view that the provisions of s.11 of the
Code had no application to execution proceedings – But under Act
104 of 1976 Explanation VII was inserted under s.11 and it says              E
that the provisions of this Section shall apply to a proceeding for
the execution of a decree and reference in this Section to any suit,
issue or former suit shall be construed as references to a proceeding
for the execution of the decree, question arising in such proceeding
and a former proceeding for the execution of that decree – Res               F
judicata.
      Dismissing the appeal, the Court
       HELD: 1.1 Under Order XXI, Rule 66 (1) the executing
court should cause proclamation of the intended sale to be drawn
up in the language of the court. Under sub rule (2) of Rule 66 of            G
Order XXI, such proclamation should be drawn up after notice to
the decree holder and the judgment-debtor. Two significant
changes were made to Order XXI, Rule 66 by Act 104 of 1976
w.e.f. 01.02.1977. Both these changes were made to sub rule (2)
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218            SUPREME COURT REPORTS                    [2021] 10 S.C.R.


A     of Rule 66. One of the changes was the insertion of the words
      “or where a part of the property would be sufficient to satisfy the
      decree, such part” in clause (a) of sub rule (2). The second change
      was the insertion of two provisos under sub rule (2). The first
      proviso under sub rule (2) of Rule 66 of Order XXI gives a
      discretion to the court not to give notice under Order XXI, Rule
B
      66 to the judgment-debtor, if a notice for settling the terms of the
      proclamation had been given to the judgment-debtor by means
      of an order under Rule 54. Rule 54 of Order XXI prescribes the
      method of attachment of immovable property. Sub rule (1A) of
      Rule 54, also inserted by Act 104 of 1976, mandates that the
C     prohibitory order under sub rule(1) shall require the judgment-
      debtor to attend court on a specified date to take notice of the
      date to be fixed for settling the terms of the proclamation of sale.
      This is why the first proviso to sub rule (2) of Rule 66 gives a
      discretion to the court to dispense with a second notice under
      Order XXI, Rule 66(2). [Paras 24, 25, 27 and 28][288-C-D;
D
      229-E, G-H; 230-A-B]
             1.2 It is seen that the appellants have filed as additional
      document the extract of relevant orders passed in Money
      Execution Case No.2 of 1975 by the District Munsif Court,
      Bongaon. This document reveals that on 10.01.1975, the
E     executing court ordered the issue of notice of attachment under
      Order XXI, Rule 54 of the Code. It was only thereafter that the
      court directed on 16.07.1975, the issue of sale proclamation under
      Order XXI, Rule 66. Thereafter, the judgment-debtor filed a
      petition under Section 47 of the Code on 02.09.1975 (this was the
F     first petition under Section 47, while the appeal on hand arises out
      of the second petition under Section 47). The executing court, at
      the instance of the judgment-debtor also granted stay of further
      proceedings on 26.09.1975. But it is not clear as to when the
      said petition under Section 47 was disposed of. However it is
      clear from the order passed on 22.04.1978 that the decree
G     holder was directed to take further steps. [Paras 29, 30 and
      31][230-B-E]
            1.3 Even after directing the publication of the sale
      proclamation in the newspaper, the executing court was more
      than fair to the judgment-debtor, as could be seen from the order
H     passed on 16.03.1979. On the said date the executing court found
  DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.                  219


that in the newspaper publication, the case number was wrongly         A
mentioned. Therefore, the court directed the issue of fresh sale
proclamation and fresh publication. It is only thereafter that the
judgment-debtor moved a petition on 30.05.1979 for
postponement of the auction. It was rejected and the court
proceeded with the auction. The decree holder himself
                                                                       B
participated in the auction after getting permission from the court.
However, it is only the third parties who succeeded in getting
the sale confirmed. [Para 32][230-F-G]
      2. The sequence of events would show that the judgment-
debtor had sufficient opportunity to object to the inclusion of the
entire property when an order was passed under Order XXI, Rule         C
54. Subsequently he had an opportunity to object to the inclusion
of the whole of the property, by taking advantage of the amended
clause (a)of sub rule (2) of Rule 66 of Order XXI, which speaks
about a part of the property that would be sufficient to satisfy the
decree. But the judgment-debtor despite filing a petition under        D
Section 47 on 02.09.1975, did not point out how the property
being a vacant land of an extent of 17 decimals could have been
divided. The notice of attachment under Order XXI, Rule 54 was
ordered on 10.01.1975 and the sale proclamation under Order
XXI, Rule 66 was directed to be issued on 16.07.1975. It is only
thereafter that the first petition under Section 47 was filed on       E
02.09.1975. [Para 33][230-H; 231-A-C]
       3.1 The objection relating to Order XXI, Rule 64 has been
raised by the appellants for the first time in the 5th round of
litigation in execution. In the 1st round, the appellants exhausted
the gun-powder available under Order XXI, Rule 90, by taking           F
recourse to a compromise with the auction purchasers, after
alleging material irregularity in the conduct of the auction. The
1st round which commenced in 1979 came to an end in 1992 with
the dismissal of SLP. In the order of the High Court dated
20.12.1990 that was under challenge in the said SLP, the High          G
Court made it clear that none of the parties shall have any claim
whatsoever as against the auction purchaser in respect of the
purchased property. [Para 34][231-D-E]


                                                                       H
220            SUPREME COURT REPORTS                       [2021] 10 S.C.R.


A           3.2 The 2 nd round was kick-started with a suit for a
      declaration that the auction sale was void. This is despite the
      express bar of a separate suit, under Section 47(1) of the Code.
      But the 2nd round got aborted with the dismissal of the suit due to
      abatement. The 3rd round started with objections to the issue of
      sale certificate and it came to an end in the year 2001. The 4th
B
      round commenced when the auction purchasers moved the
      executing court for delivery of possession. Delivery was ordered
      by the executing court on 15.03.2002. This round came to a close
      with the dismissal of a SLP in the year 2005 and a review petition
      in the year 2006, arising out of the dismissal of a revision petition
C     challenging the order of the executing court for delivery of
      possession. It is only thereafter that the 5th round of litigation
      was started by the appellants by filing a petition under Section 47
      and raising the bogey of “jurisdictional error” on account of non-
      compliance with the mandate of Order XXI, Rule 64. In other
      words, the appellants have now exhausted almost all provisions
D
      available to a judgment-debtor to stall execution. [Paras 35 and
      36][231-F-H; 232-A-B]
            4. The appellants cannot be allowed to raise the issue
      relating to the breach of Order XXI, Rule 64 for the following
      reasons:-
E
             (i) A judgment-debtor cannot be allowed to raise objections
      as to the method of execution in instalments. After having failed
      to raise the issue in four earlier rounds of litigation, the appellants
      cannot be permitted to raise it now;

F           (ii) The original judgment-debtor himself filed a petition
      under Section 47, way back on 02.09.1975. What is on hand is a
      second petition under Section 47 and, hence, it is barred by res
      judicata. Before Act 104 of 1976 came into force, there was one
      view that the provisions of Section 11 of the Code had no
      application to execution proceedings. But under Act 104 of 1976
G     Explanation VII was inserted under Section 11 and it says that
      the provisions of this Section shall apply to a proceeding for the
      execution of a decree and reference in this Section to any suit,
      issue or former suit shall be construed as references to a
      proceeding for the execution of the decree, question arising in
H
  DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.                    221


such proceeding and a former proceeding for the execution of             A
that decree;
      (iii) Even in the 5th round, the appellants have not pointed
out the lay of the property, its dimensions on all sides and the
possibility of dividing the same into two or more pieces, with a
view to sell one or more of those pieces for the realisation of the      B
decree debt;
      (iv) The observations in the order of the High Court dated
20.12.1990 in C.O.No.2487 of 1987 that, “none of the parties shall
have any claim whatsoever as against the applicant in respect of
the purchased property which shall be deemed to be his absolute          C
property on and from the expiry of 15 th December, 1980”, has
attained finality;
      (v) Section 65 of the Code says that, “where immovable
property is sold in execution of a decree and such sale has become
absolute, the property shall be deemed to have vested in the purchaser   D
from the time when the property is sold and not from the time when
the sale becomes absolute”. The sale of a property becomes
absolute under Order XXI, Rule 92(1) after an application made
under Rule 89, Rule 90 or Rule 91 is disallowed and the court
passes an order confirming the same. After the sale of an
immovable property becomes absolute in terms of Order XXI,               E
Rule 92(1), the Court has to grant a certificate under Rule 94.
The certificate has to bear the date and the day on which the sale
became absolute. Thus a conjoint reading of Section 65, Order
XXI, Rule 92 and Order XXI, Rule 94 would show that it passes
through three important stages (other than certain intervening           F
stages). They are, (i) conduct of sale; (ii) sale becoming absolute;
and (iii) issue of sale certificate. After all these three stages are
crossed, the 4th stage of delivery of possession comes under Rule
95 of Order XXI. It is at this 4th stage that the appellants have
raised the objection relating to Order XXI, Rule 64. It is not as if
the appellants were not aware of the fact that the property in           G
entirety was included in the proclamation of sale. Therefore, the
claim on the basis of Order XXI, Rule 64 was rightly rejected by
the High Court. [Para 37][232-B-H; 233-A-D]

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222             SUPREME COURT REPORTS                           [2021] 10 S.C.R.


A             Takkaseela Pedda Subba Reddi vs. Pujari
              Padmavathamma & Ors. (1977) 3 SCC 337 : [1977] 3
              SCR 692; Ambati Narasayya vs M. Subha Rao & Anr.
              (1989) Supp. 2 SCC 693 : [1989] 1 Suppl. SCR 451 –
              distinguished.
B                               Case Law Reference
      [1977] 3 SCR 692                  distinguished                Para 20
      [1989] 1 Suppl. SCR 451           distinguished                Para 22
              CIVIL APPELLATE JURISDICTION: Civil Appeal No.4557 of
      2012.
C
            From the Judgment and Order dated 28.03.2008 of the High Court
      of Calcutta in C.O. No.1115 of 2007.
              Rauf Rahim, Ali Asgar Rahim, Advs. for the Appellants.
             Raja Chatterjee, Piyush Sachdev, S. P. M. Tripathi, V. K. Shukla,
D     Dhruv Toliya, Sugam Mishra, Ms. Swagoti Batchas, Satish Kumar, Advs.
      for the Respondents.
              The Judgment of the Court was delivered by
              V. RAMASUBRAMANIAN, J.
E             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 judgment-debtor 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
F     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.1-7/auction purchasers.
G
             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
H     in six equal instalments with a default clause.
  DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.                             223
                [V. RAMASUBRAMANIAN, J.]

       4. Since the decree was not honoured, the decree holder filed an           A
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 Judgment-debtor filed an
                                                                                  B
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       C
bid amount. The highest bidders also deposited the money into court.
      First round
       6. Mr. Sasadhar Biswas, the judgment-debtor 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          D
of irregularities in the sale proclamation. During the pendency of this
petition in Miscellaneous Case No.47 of 1979, the judgment-debtor
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:-                                                                E
               “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   F
      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
                                                                                  G
      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.”                                                         H
224             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A            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 judgment-debtor with the auction purchasers did not refer to the
      decree debt, but repeatedly mentioned the words, “entire money due to
      the auction purchasers”, the judgment-debtor admittedly deposited on
B
      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 deadline for payment of the entire money due to the
      auction purchasers expired on 15.12.1980 and also since the judgment-
C     debtor deposited only a sum of Rs.3700/-, as against the amount of
      Rs.5500/- deposited by the auction purchasers, the executing court
      dismissed the application under Order XXI, Rule 90 in Miscellaneous
      Case No.47 of 1979.
             9. But within four days, the executing court again passed an order
D     on 20.12.1980 recalling the order dated 16.12.1980 and recording full
      satisfaction in the execution. Shocked at this order, the auction purchasers
      filed an application on 22.12.1980 for recalling the order dated 20.12.1980,
      passed purportedly behind their back. This application was dismissed by
      the executing court on 12.09.1981. Challenging the said order dated
E     12.09.1981, passed by the executing court, the auction purchasers filed
      a revision in C.R.No.3577 of 1981 on the file of the High Court. The
      High Court allowed the revision by an order dated 21.06.1983 and
      remanded the matter back to the executing court, for re-hearing the
      application of the auction purchasers for recall of the order dated
      20.12.1980.
F
             10. The executing court passed a fresh order dated 11.07.1987
      rejecting the application of the auction purchasers on merits, but this
      order was set aside by the High Court in a revision in C.O.No.2487 of
      1987, by an order dated 20.12.1990. By this order the High Court held
      that the judgment-debtor failed to honour the commitment made in the
G     compromise memo to deposit the entire amount due to the auction
      purchasers and that therefore the auction sale should be confirmed in
      favour of the auction purchasers. It may be relevant to extract Clause
      No.4 of the operative portion of the order of the High Court in C.O.
      No.2487 of 1987 dated 20.12.1990. It reads as follows:-
H            “xxx               xxx               xxx              xxx
  DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.                          225
                [V. RAMASUBRAMANIAN, J.]

      4. None of the parties shall have any claim whatsoever as against        A
the applicant in respect of the purchased property which shall be deemed
to be his absolute property on and from the expiry of 15th December,
1980.”
       11. Thereafter, a mention was made before the learned judge, on
behalf of the counsel for the judgment-debtor seeking recall of the order      B
in C.O.No.2487 of 1987 on the ground that the counsel was not present
at the time of disposal of the revision petition. Therefore, the leaned
Judge again heard the matter and passed a detailed order dated
08.08.1991, reiterating his earlier order. A special leave petition filed
against the order dated 08.08.1991, in SLP(C)No.18092 of 1991 was
dismissed by this Court on 24.02.1992. The judgment-debtor moved a             C
petition for review before this Court but the same was also dismissed on
12.08.1992. Thus, the 1st round of litigation kicked off with an application
under Order XXI, Rule 90, in the year 1979, came to an end in 1992.
      Second Round
                                                                               D
        12. The judgment-debtor then started the 2nd round by filing a suit
in suit No.249 of 1992 on the file of the District Munsif, Bongaon, for a
declaration that the auction sale is void but the said suit was dismissed
as abated, on 02.12.1992.
      Third Round
                                                                               E
        13. In the meantime, the auction purchasers filed petitions for the
issue of sale certificate and the judgment-debtor filed a petition under
Order XXI, Rule 29 for stay of execution proceedings. But the application
of the judgment-debtor was dismissed and the applications of the auction
purchasers were allowed by the executing court by an order dated
31.01.1994. A direction was given for the issue of a sale certificate to       F
the auction purchasers in terms of Order XXI, Rule 94. Accordingly, a
sale certificate was issued on 08.02.1994. The sale certificate was also
duly registered.
       14. Challenging the order dated 31.01.1994 passed by the executing
court directing the issue of sale certificate, the judgment-debtor filed a     G
revision in C.O.No.1232 of 1994 on the file of the High Court. Though
the High Court entertained the revision and initially granted a stay of
further proceedings in the execution, the High Court eventually dismissed
the revision petition by an order dated 05.09.2001 holding that the earlier
order in C.O.No.2487 of 1987 dated 08.08.1991 had already clinched
the issue. With this order, the third round came to an end.                    H
226            SUPREME COURT REPORTS                         [2021] 10 S.C.R.


A           Fourth Round
             15. The 4 th round began with an application by the auction
      purchasers seeking delivery of possession. This application was allowed
      by the executing court on 15.03.2002, directing delivery to be effected
      by 16.04.2002. Since the judgment-debtor had, in the meantime,
B     constructed a building on the land sold in execution of the decree, the
      executing court directed the building so constructed illegally, to be
      demolished.
              16. The order of the executing court for delivery of possession
      was challenged by the appellants herein (the legal representatives of
C     the judgment-debtor) in a Civil Petition No.106 of 2002 before the
      Additional District Judge, Barasat. The same was dismissed on
      26.02.2003. This order was challenged before the High Court in
      C.O.No.1276 of 2003, but the same was dismissed by the High Court by
      an order dated 11.02.2005 pointing out that the issue has already been
      clinched by the previous orders. The special leave petition SLP(C)
D     No.12925 of 2005 filed against the said order, was dismissed by this
      Court on 18.07.2005. The petition seeking review of the said order was
      also dismissed by this Court on 10.01.2006. Thus, the fourth round of
      litigation came to a close.
            Fifth Round (present round)
E
             17. Not to be put off by repeated failures, the appellants herein,
      like the tireless Vikramaditya, (who made repeated attempts to capture
      ‘Betal’) started the present round (hopefully the final round), by moving
      a petition in Miscellaneous Case No.15 of 2006 before the executing
      court under Section 47 of the Code, on the ground that the mandate of
F     Order XXI Rule 64 was not followed in the auction and that therefore a
      jurisdictional error has crept in and that the same could be corrected at
      any point of time and at any stage of the proceeding. This petition filed
      on 10.02.2006 was dismissed by the executing court by an order dated
      20.01.2007.
G             18. Challenging the said order dismissing their application under
      Section 47, the appellants filed a revision in C.O. No.1115 of 2007 on the
      file of the High Court. This revision was dismissed by the High Court by
      an order dated 28.03.2008, on the ground that the issue, never having
      been raised earlier, cannot be allowed to be raised at this distance of
      time. It is against the said order of the High Court dated 28.03.2008, in
H
     DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.                         227
                   [V. RAMASUBRAMANIAN, J.]

C.O.No.1115 of 2007 that the legal representatives of the judgment-              A
debtor have come up with the above appeal.
         Contentions and our analysis
       19. The only mantra, by the recitation of which, the appellants
hope to succeed in this half-a-century old litigation, is Order XXI, Rule
64 of the Code. This provision enables an executing court to order “that         B
any property attached by it and liable to sale or such portion thereof
as may seem necessary to satisfy the decree, shall be sold and that
the proceeds of such sale or a sufficient portion thereof shall be
paid to the party entitled under the decree to receive the same”.
       20. It is the contention of the learned counsel for the appellants        C
that Order XXI, Rule 64 casts not a discretion, but an obligation, to sell
only such portion of the property as may be sufficient to satisfy the
decree. In support of this proposition, the learned counsel for the appellants
cited a few decisions, which we shall now deal with. In Takkaseela
Pedda Subba Reddivs. Pujari Padmavathamma & Ors1, this Court                     D
held that the, “executing court derives jurisdiction to sell properties
attached, only to the point at which the decree is fully satisfied”,
and that the words, “necessary to satisfy the decree”, clearly indicate
that no sale can be allowed beyond the decretal amount mentioned in
the sale proclamation. This Court went further to hold that the issue
flowing out of Order XXI, Rule 64 goes to the very root of the jurisdiction      E
of the executing court and that therefore the fact that an objection in this
regard was not raised before the executing court is not sufficient to put
him out of court.
       21. But the aforesaid decision arose out of a case where the
decretal amount for which the properties were to be sold was mentioned           F
in the warrant of sale and sale proclamation as Rs.16,715/-. The lands in
two villages namely Devanoor and Gudipadu were brought to sale.
The sale of lands in one village alone fetched Rs.16,880/-. Yet the
executing court proceeded to sell the lands in Gudipadu also. It is in
that context that this Court held as aforesaid.                                  G
       22. The decision in Ambati Narasayya vs M. Subha Rao &
    2
Anr ,while following T.P. Subba Reddi(supra), went a step further and
held that if the property is large and the decree to be satisfied is small,
1
    (1977) 3 SCC 337
2
    (1989) Supp. 2 SCC 693                                                       H
228            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     the court must bring only such portion of the property, the proceeds of
      which would be sufficient to satisfy the decree debt and that it is
      immaterial whether the property is one or several.
             23. But the decision in Ambati Narasayya (supra) also arose out
      of a particular context. The land that was sold in Ambati Narasayya
B     (supra) was of the extent of 10 acres and it was sold for Rs.17,000/- for
      the satisfaction of a claim of Rs.2400/-. The land of the extent of 10
      acres is certainly large enough and is capable of division. But in the case
      on hand, the extent of land is only 17 decimals, working out to (7450
      Sq.ft.).
C            24. It must be pointed out at this stage that under Order XXI,
      Rule 66 (1) the executing court should cause proclamation of the intended
      sale to be drawn up in the language of the court. Under sub rule (2) of
      Rule 66 of Order XXI, such proclamation should be drawn up after
      notice to the decree holder and the judgment-debtor. Order XXI, Rule
      66 reads as follows:-
D
            66. Proclamation of sales by public auction.- (1) Where any
            property is ordered to be sold by public auction in execution of a
            decree, the Court shall cause a proclamation of the intended sale
            to be made in the language of such Court.

E           (2) Such proclamation shall be drawn up after notice to the decree-
            holder and the judgment-debtor and shall state the time and place
            of sale, and specify as fairly and accurately as possible—
            (a) the property to be sold, or, where a part of the property
            would be sufficient to satisfy the decree, such part;
F           (b) the revenue assessed upon the estate or part of the estate,
            where the property to be sold is an interest in an estate or in part
            of an estate paying revenue to the Government;
            (c) any incumbrance to which the property is liable;
            (d) the amount for the recovery of which the sale is ordered; and
G
            (e) every other thing which the Court considers material for a
            purchaser to know in order to judge of the nature and value of the
            property:
            Provided that where notice of the date for settling the terms of
H           the proclamation has been given to the judgment-debtor by means
  DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.                          229
                [V. RAMASUBRAMANIAN, J.]

      of an order under rule 54, it shall not be necessary to give notice      A
      under this rule to the judgment-debtor unless the Court otherwise
      directs:
      Provided further that nothing in this rule shall be construed as
      requiring the Court to enter in the proclamation of sale its own
      estimate of the value of the property, but the proclamation shall        B
      include the estimate, if any, given, by either or both of the parties.
      (3) Every application for an order for sale under this rule shall be
      accompanied by a statement signed and verified in the manner
      hereinbefore prescribed for the signing and verification of pleadings
      and containing, so far as they are known to or can be ascertained        C
      by the person making the verification, the matters required by
      sub-rule (2) to be specified in the proclamation.
      (4) For the purpose of ascertaining the matters to be specified in
      the proclamation, the Court may summon any person whom it
      thinks necessary to summon and may examine him in respect to             D
      any such matters and require him to produce any document in his
      possession or power relating thereto.
       25. It is important to note here that two significant changes were
made to Order XXI, Rule 66 by Act 104 of 1976 w.e.f. 01.02.1977. Both
these changes were made to sub rule (2) of Rule 66. One of the changes         E
was the insertion of the words “or where a part of the property would
be sufficient to satisfy the decree, such part” in clause (a) of sub rule
(2). The second change was the insertion of two provisos under sub
rule (2).
       26. As an aside, it may be noted that the second proviso to sub         F
rule (2) inserted by Central Act 104 of 1976, was redundant in so far as
Calcutta is concerned, since Calcutta already had a similar proviso
inserted through a local amendment.
       27. The first proviso under sub rule (2) of Rule 66 of Order XXI
gives a discretion to the court not to give notice under Order XXI, Rule
                                                                               G
66 to the judgment-debtor, if a notice for settling the terms of the
proclamation had been given to the judgment-debtor by means of an
order under Rule 54.
     28. Rule 54 of Order XXI prescribes the method of attachment of
immovable property. Sub rule (1A) of Rule 54, also inserted by Act 104
                                                                               H
230             SUPREME COURT REPORTS                             [2021] 10 S.C.R.


A     of 1976, mandates that the prohibitory order under sub rule(1) shall require
      the judgment-debtor to attend court on a specified date to take notice of
      the date to be fixed for settling the terms of the proclamation of sale.
      This is why the first proviso to sub rule (2) of Rule 66 gives a discretion
      to the court to dispense with a second notice under Order XXI, Rule
      66(2).
B
              29. Keeping in mind the above statutory prescriptions, if we come
      to the facts of the case, it is seen that the appellants have filed as additional
      document in Annexure A-3, the copy of the extract of relevant orders
      passed in Money Execution Case No.2 of 1975 by the District Munsif
      Court, Bongaon. This document reveals that on 10.01.1975, the executing
C     court ordered the issue of notice of attachment under Order XXI, Rule
      54 of the Code. It was only thereafter that the court directed on
      16.07.1975, the issue of sale proclamation under Order XXI, Rule 66.
             30. Thereafter, the judgment-debtor filed a petition under Section
      47 of the Code on 02.09.1975 (this was the first petition under Section
D     47, while the appeal on hand arises out of the second petition under
      Section 47).
            31. The executing court, at the instance of the judgment-debtor
      also granted stay of further proceedings on 26.09.1975. But it is not
      clear from Annexure A-3 of the additional documents filed by the
E     appellants, as to when the said petition under Section 47 was disposed
      of. However it is clear from the order passed on 22.04.1978 that the
      decree holder was directed to take further steps.
             32. Even after directing the publication of the sale proclamation in
      the newspaper, the executing court was more than fair to the judgment-
F     debtor, as could be seen from the order passed on 16.03.1979. On the
      said date the executing court found that in the newspaper publication,
      the case number was wrongly mentioned. Therefore, the court directed
      the issue of fresh sale proclamation and fresh publication. It is only
      thereafter that the judgment-debtor moved a petition on 30.05.1979 for
G     postponement of the auction. It was rejected and the court proceeded
      with the auction. The decree holder himself participated in the auction
      after getting permission from the court. However, it is only the third
      parties who succeeded in getting the sale confirmed.
            33. The above sequence of events would show that the judgment-
      debtor had sufficient opportunity to object to the inclusion of the entire
H
  DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.                           231
                [V. RAMASUBRAMANIAN, J.]

property when an order was passed under Order XXI, Rule 54.                     A
Subsequently he had an opportunity to object to the inclusion of the whole
of the property, by taking advantage of the amended clause (a)of sub
rule (2) of Rule 66 of Order XXI, which speaks about a part of the
property that would be sufficient to satisfy the decree. But the judgment-
debtor despite filing a petition under Section 47 on 02.09.1975, did not
                                                                                B
point out how the property being a vacant land of an extent of 17 decimals
could have been divided. It must be pointed out at the cost of repetition
that the notice of attachment under Order XXI, Rule 54 was ordered on
10.01.1975 and the sale proclamation under Order XXI, Rule 66 was
directed to be issued on 16.07.1975. It is only thereafter that the first
petition under Section 47 was filed on 02.09.1975. Therefore, the               C
appellants cannot compare themselves to the judgment-debtors in T.P.
Subba Reddi or Ambati Narasayya (supra).
       34. As we have pointed out elsewhere, the objection relating to
Order XXI, Rule 64 has been raised by the appellants for the first time in
the 5th round of litigation in execution. In the 1st round, the appellants      D
exhausted the gun-powder available under Order XXI, Rule 90, by taking
recourse to a compromise with the auction purchasers, after alleging
material irregularity in the conduct of the auction. The 1st round which
commenced in 1979 came to an end in 1992 with the dismissal of SLP(C)
No.18092 of 1991. In the order of the High Court dated 20.12.1990 that
was under challenge in the said SLP, the High Court made it clear that          E
none of the parties shall have any claim whatsoever as against the auction
purchaser in respect of the purchased property (we have extracted this
in Para 10 above).
       35. The 2nd round was kick-started with a suit in Suit No.249 of
1992 for a declaration that the auction sale was void. This is despite the      F
express bar of a separate suit, under Section 47(1) of the Code. But the
2nd round got aborted with the dismissal of the suit due to abatement.
       36. The 3rd round started with objections to the issue of sale
certificate and it came to an end in the year 2001. The 4 th round
commenced when the auction purchasers moved the executing court                 G
for delivery of possession. Delivery was ordered by the executing court
on 15.03.2002. This round came to a close with the dismissal of a SLP in
the year 2005 and a review petition in the year 2006, arising out of the
dismissal of a revision petition challenging the order of the executing
court for delivery of possession. It is only thereafter that the 5th round of   H
232             SUPREME COURT REPORTS                            [2021] 10 S.C.R.


A     litigation was started by the appellants by filing a petition under Section
      47 and raising the bogey of “jurisdictional error” on account of non-
      compliance with the mandate of Order XXI, Rule 64. In other words,
      the appellants have now exhausted almost all provisions available to a
      judgment-debtor to stall execution and the case on hand is fit to be included
      in the syllabus of a law school as a study material for students to get
B
      equipped with the various provisions of the Code relating to execution.
             Conclusion
             37. The appellants cannot be allowed to raise the issue relating to
      the breach of Order XXI, Rule 64 for the following reasons:-
C            (i) A judgment-debtor cannot be allowed to raise objections as to
      the method of execution in instalments. After having failed to raise the
      issue in four earlier rounds of litigation, the appellants cannot be permitted
      to raise it now;
             (ii) As we have pointed out elsewhere, the original judgment-
D     debtor himself filed a petition under Section 47, way back on 02.09.1975.
      What is on hand is a second petition under Section 47 and, hence, it is
      barred by res judicata. It must be pointed out at this stage that before
      Act 104 of 1976 came into force, there was one view that the provisions
      of Section 11 of the Code had no application to execution proceedings.
E     But under Act 104 of 1976 Explanation VII was inserted under Section
      11 and it says that the provisions of this Section shall apply to a proceeding
      for the execution of a decree and reference in this Section to any suit,
      issue or former suit shall be construed as references to a proceeding for
      the execution of the decree, question arising in such proceeding and a
      former proceeding for the execution of that decree;
F
              (iii) Even in the 5th round, the appellants have not pointed out the
      lay of the property, its dimensions on all sides and the possibility of dividing
      the same into two or more pieces, with a view to sell one or more of
      those pieces for the realisation of the decree debt;
             (iv) The observations in paragraph 4 of the order of the High
G
      Court dated 20.12.1990 in C.O.No.2487 of 1987 that, “none of the
      parties shall have any claim whatsoever as against the applicant in
      respect of the purchased property which shall be deemed to be his
      absolute property on and from the expiry of 15th December, 1980”,
      has attained finality;
H
  DIPALI BISWAS & ORS. v. NIRMALENDU MUKHERJEE & ORS.                            233
                [V. RAMASUBRAMANIAN, J.]

       (v) Section 65 of the Code says that, “where immovable property           A
is sold in execution of a decree and such sale has become absolute,
the property shall be deemed to have vested in the purchaser from
the time when the property is sold and not from the time when the
sale becomes absolute”. The sale of a property becomes absolute under
Order XXI, Rule 92(1) after an application made under Rule 89, Rule 90
                                                                                 B
or Rule 91 is disallowed and the court passes an order confirming the
same. After the sale of an immovable property becomes absolute in
terms of Order XXI, Rule 92(1), the Court has to grant a certificate
under Rule 94. The certificate has to bear the date and the day on which
the sale became absolute. Thus a conjoint reading of Section 65, Order
XXI, Rule 92 and Order XXI, Rule 94 would show that it passes through            C
three important stages (other than certain intervening stages). They
are, (i) conduct of sale; (ii) sale becoming absolute; and (iii) issue of
sale certificate. After all these three stages are crossed, the 4th stage of
delivery of possession comes under Rule 95 of Order XXI. It is at this
4th stage that the appellants have raised the objection relating to Order
                                                                                 D
XXI, Rule 64. It is not as if the appellants were not aware of the fact
that the property in entirety was included in the proclamation of sale.
Therefore, the claim on the basis of Order XXI, Rule 64 was rightly
rejected by the High Court.
        38. In view of the above, the appeal is devoid of merits and, hence,
it is dismissed. There will be no order as to costs.                             E


Devika Gujral                                                Appeal dismissed.



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