Special Leave Petition (Civil) No. 25797 of 2004. Case: Sukumar DE Vs Bimala Auddy and Ors.. Supreme Court

Case NumberSpecial Leave Petition (Civil) No. 25797 of 2004
Party NameSukumar DE Vs Bimala Auddy and Ors.
CounselFor Appellant: Rana Mukherjee, Mridula Ray Bharadwaj and Gopal Jha, Advs. and For Respondents: Krishnan Venugopal, Sr. Adv., Uttpal Majmudar, B.P. Yadav and Sarla Chandra, Advs.
JudgesK.S. Panicker Radhakrishnan and A.K. Sikri, JJ.
IssueIndian Stamp Act, 1899 - Section 54; Code of Civil Procedure (CPC) - Section 115; Code of Civil Procedure (CPC) - Order 21 Rule 89, Order 21 Rule 89(1); Constitution of India - Article 136
Citation2013 (XI) AD (SC) 130, 2013 (6) AWC 6422 SC, 2013 (8) MLJ 112, 2013 (13) SCALE 307, 2014 (1) SCC 584
Judgement DateOctober 28, 2013
CourtSupreme Court

Judgment:

A.K. Sikri, J.

  1. 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.

  2. 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.

  3. 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...

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