MANJU SWARUP (D) THR. LRS. vs. BHUPENSHWAR PRASAD (D) THR. LRS. .

1 NON REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPEAL NO. 8398 OF 2013 (Arising out of SLP(C) No. 6094 of 2007) Manju Swarup (D) through Lrs. .....Appellants Versus Bhupenshwar Prasad (D) Through Lrs. & Ors. …..Respondents J U D G M E N T ANIL R. DAVE, J. JUDGMENT 1. Leave granted. 2. This is one of the cases which shows how miserable a decree holder becomes in the execution proceedings. This is a Second Appeal in the execution proceedings filed by the judgment debtor whose property was ordered to be sold in Page 1 2 the execution proceedings. In pursuance of a suit, which had been filed in 1955, the final decree was passed and the

continuing since then. The facts, in a nutshell, are that the Execution Case No. 29 of 1962 was filed for recovery of the decretal amount by the decree-holder. Auction notice was th published on 16 April, 1964. The appellant herein, the judgment debtor had filed an application under Order XXI, Rule 83 of the Code of Civil Procedure, 1908 (for short ‘the CPC’) for postponement of the sale, as it was possible for the judgment debtor to raise the decretal amount and pay the JUDGMENT same to the decree-holder. th 3. Ultimately, on 8 October, 1964, the parties had come to some understanding, which had been recorded by the Court as under: Page 2 3

within the specified time and ultimately the executing court rd had passed the following order on 3 August, 1965: “In case the JD has committed default in not making payment in time, the execution has to proceed unless the decree holder (DH) condones the delay. Let DH disclose by 19.08.1965 if he wants to proceed or condone the delay of JD.” 5. The amount was still not paid by the judgment debtor and the judgment debtor filed an application for extension of JUDGMENT time and on the said application, the court passed the th following order on 28 August, 1965: “I have heard learned counsel and gone through the proceeding. There are no grounds why the JD should be allowed any further time. 47C2 is rejected. Issue sale proclamation 28.10.1964. Deposit by 01.11.1965.” Page 3 4 6. An application made for stay of the auction proceedings, filed by the judgment debtor, had been rejected by the order

of the auction, 35 bidders were present and the property was sold for Rs.13,700/-. th 7. Thereafter, on 10 May, 1969, the judgment debtor filed an application under Order XXI, Rule 90 of the CPC alleging that irregularities were committed in the conduct of the auction and the attached property had been sold at a lower price. The said application was allowed by the executing court on the ground that the sale price was inadequate. JUDGMENT th 8. Being aggrieved by the aforestated order dated 10 May, 1969, an appeal had been filed, which had been allowed by th the order dated 5 February, 1970. th 9. The validity of the aforestated order dated 5 February, 1970 was challenged by the judgment debtor by filing an Execution Second Appeal No. 742 of 1970 before the High Page 4 5 Court of Allahabad. The High Court, by an interim order th dated 11 May, 1970 gave an opportunity to the

order, failing which it was directed that the said order would stand automatically vacated. 10. The entire decretal amount was admittedly not paid by the nd judgment debtor and therefore, finally by an order dated 2 February, 2006, the Execution Second Appeal No. 742 of 1970 has been dismissed by the High Court and being aggrieved by the said order, the judgment debtor has filed this appeal. JUDGMENT 11. The learned counsel appearing for the judgment debtor- the appellant had mainly submitted that the decretal amount had been deposited by the appellant in the court after the period specified by the High Court was over and therefore, the sale should be cancelled and the present appeal should be allowed so that the appellant can get his property back. Page 5 6 12. On the other hand, the learned counsel appearing for the respondents had submitted that the stay had been granted by

amount within a specified period, but that had not been paid or deposited within the time prescribed by the High Court and therefore, the Execution Second Appeal has been dismissed by the High Court. In the circumstances, no further opportunity be given to the appellant. 13. We have heard the learned counsel and have also considered the facts of the case. It is really deplorable that the heirs of the plaintiff who had filed the original suit somewhere in JUDGMENT 1955 are still unable to get the decretal amount. In our opinion, sufficient opportunities had been provided to the judgment debtor to pay the decretal amount but every time the appellant failed to pay the decretal amount within the period prescribed, this matter should have an end at this Page 6 7 stage and therefore, we dismiss the appeal and the stay granted by this Court also stands vacated.

……...........................................J. (A.K. SIKRI) New Delhi September 20, 2013 JUDGMENT Page 7