1. Suit No. 250 of 1951 (Hindustan Commercial Bank Limited v. Yashodanand Garg) was filed by Hindustan Commercial Bank (the first opposite party in this revision under S. 115 C.P.C) in the Court of the 1st Civil Judge, Kanpur for recovery of money on the basis of a mortgage. The suit was decreed on Jan. 16, 1957. The Court found that legal necessity for part of the suit amount was not proved. As such, it passed a preliminary decree for recovery of Rs. 35,269/.5/.3 with interest to be realised by sale of the mortgaged property. A simple money decree for recovery of Rs. 25,230/11/6 was also passed. The Bank filed execution application No. 11 of 1957 on Oct. 30, 1957 for the realisation of the amount of the simple money decree. In this case notice under O. 21, R; 44 C.P.C returnable by Jan. 24, 1958 was issued by the Court on Dec. 19, 1957. The immoveable properties had, in the meantime, been attached. On May 10, 1958 notices were issued under O. 21, R. 44 C.P.C to the judgment-debtor. The same day, final decree in respect of the mortgage amount was passed. Terms of sale were prepared on Oct. 3, 1958.

2. On Sept. 12, 1959 a compromise (paper No. 69-AI) was filed in Execution Case No. 11 of 1967 and the execution case was disposed of in terms of the said compromise. A copy of that paper has been filed as Annexure ‘A’ to the counter affidavit filed on behalf of the Bank in the stay matter in the present revision. According to it, proceedings for the sale of house No. 96/15, which was the mortgaged property, was to be dropped for the present. A consolidated amount of Rs. 79,421.96 (inclusive of interest up to July 31, 1959) was admitted by the judgment-debtors to be the claim of the decree-holder. The amount was to be paid in certain instalments with interest for the future period. It was provided that in case there was default on the part of the judgment-debtors in making payment as agreed, the decree-holders would be entitled to execute the decree for the full amount then due against the judgment-debtors forthwith by sale of House No. 96/15. The charge created by the mortgage of the house was to continue intact till the entire money due to the decree-holder had been fully paid. In the year 1961 the decree-holder Bank filed Execution Case No. 7 of 1961 on the basis of the aforesaid compromise as there was default on the part of the judgment-debtors in making payment in terms thereof. House No. 96/15 was auctioned in the execution case and was purchased by Ishwar Chandra and Kishan Raman (who are the auction purchasers opposite parties 2 and 3 in this revision) on July 16, 1964. Lav Garg and Kush Garg, the two sons of Parmanand Garg (who are opposite parties 7 and 8 in this revision) filed an objection under S. 47 C.P.C which was registered as Misc. Case No. 20 of 1964. This objection was dismissed on Aug. 8, 1965. Thereafter, the objectors filed an application for review of the order dt. Aug. 8, 1964 which was registered as Misc. Case No. 30 of 1964. The review application was allowed in part by order dt. Dec. 19, 1964. A copy of that order is annexure ‘o’ to the counter affidavit filed in the stay matter in this revision by the decree-holder Bank. The second Additional Civil Judge, Kanpur, who passed this, order, took the view that the amount which was to be realised by sale of mortgaged property was not the subject matter of Execution Application No. 11 of 1957. That execution application was in respect of the amount of simple money decree. As such, the compromise dt. Aug. 20, 1959 could not be given effect to and the decree-holder ought to bifurcate the two amounts in executing his decree. The learned Judge, however, repelled the submission made on behalf of the judgment-debtor applicants that the execution itself should be dismissed. He held that the decree-holder had consolidated the amounts in view of the compromise between the parties and had honestly and correctly moved for the execution of the decree of the consolidated amount. It should, therefore, be given an opportunity to bifurcate the amount in the same execution application. The learned Judge was also of the view that the judgment-debtor had been filing objections earlier with a view to delay the execution proceedings and that the dismissal of the present execution application would, unnecessarily delay the proceedings for the recovery of the amount and would be unjust and improper. The operative portion of the order passed by the learned Judge was in these terms:

“Order

The application for review is allowed. The order dt. 8-8-64 is reviewed. Objections are allowed to this extent that the execution for the recovery of the consolidated amount in the present form is not maintainable. The Decree Holders Opposite parties are given an opportunity to bifurcate the two amounts of the simple money decree and the mortgage decree in this very execution case. Costs shall be easy.

19-12-64”

3. On the basis of this order, an application dt. Jan. 4/7, 1965 was made by the decree-holder Bank for amending the execution application. This application was allowed and the execution application was accordingly amended. After the auction-sale of July, 16, 1964, the judgment-debtors had filed an objection under R. 90 of O. 21 C.P.C on Aug 7, 1964 for setting aside the sale on the ground of the alleged irregularities therein. These objections were dismissed in the year 1965. The judgment-debtors did not proceed in that matter further as, according to them, the order dt. Dec. 19, 1964 had the effect of holding the execution Case No. 7 of 1961 as not maintainable. They also did not press their appeal (F.A.F.O No. 193 of 1963) in this Court against the order of the dismissal of the earlier objection under S. 47 C.P.C The file had been summoned by this Court in connection with First Appeal From Order No. 193 of 1963 which was not heard till the year 1972, While the file was still in this Court, an application dt. Aug. 2, 1972 was made by judgment-debtor, Ramanand, under S. 151 C.P.C before the 1st Civil Judge at Kanpur that on the receipt of the file from the High Court no further order should be passed as the sale stood set aside. That application was ordered to be put up when the record was received at Kanpur from this Court.

4. The file was received back at Kanpur sometimes in April/May, 1973. The auction purchasers made an application (Paper No. 16C) under O. 21 R. 92 C.P.C praying that the judgment-debtors objection under O. 21 R. 90 C.P.C having been dismissed and F.A.F.O No. 193 of 1963 having also been dismissed, the sale in their favour be confirmed. The Civil Judge passed an order on Aug. 28, 1973 saying:

“Fix 7-9-1973 for disposal of 16-C2. In the meantime the Auction Purchaser to file certified copy of judgment of the Hon'ble High Court intimating that the stay order has been vacated. In the meantime execution clerk shall report if confirmation of sale is not otherwise stayed.

First Civil Judge,

28-8-1973.”

5. A report was submitted by the Execution Clerk on Sept. 6, 1973. The Court examined the record and the report and came to the conclusion that there was no stay order staying confirmation of sale. The order passed by the 1st Civil Judge, Kanpur on Sept. 7, 1973 was in these terms:

“Order

Sale dt. 16-7-1964 is hereby confirmed. Execution is struck off in full satisfaction. Consign. Application 16-C is thus allowed.

First Civil Judge, Kanpur

7-9-1973.”

6. Lav Garg then filed Misc. (Application) Case No. 125 of 1973 under S. 1-51 C.P.C on Sept. 12, 1973 for setting aside the order of Sept. 7, 1973 confirming the sale of the property. This application was disposed of by the 1st Civil Judge, Kanpur by order dt. June 2, 1975. A copy of that order is annexure ‘E’ to the counter affidavit filed by the decree-holder Bank in the stay matter in this case. The ground was that the application (14C) filed on Aug. 2, 1972 was not considered due to oversight. The 1st. Civil Judge, Kanpur in his order dt. June 2, 1975 went into the matter in detail and found that the point which Lav Garg wanted to raise in the application (14C) had already been considered and even though that application was not specifically taken into consideration, no-miscarriage of justice had taken place as far as the applicant was concerned. According to the learned Civil Judge:

“….After the dismissal of the objection under O. 21 R. 90 C.P.C and the appeal filed before the Hon'ble High Court, the court was left with no option but confirm the sale under O. 21R. 92 C.P.C The confirmation of sale is a routine matter. It was not necessary to issue a notice to the judgment-debtors before passing an order confirming the sale. There is nothing on record to suggest that the auction purchasers, in any way, colluded with the decree-holder Bank and obtained the order of confirmation of the sale by mis representing the facts. The order of confirmation of sale was passed by my learned predecessor on his being satisfied that there was no impediment in passing that order.

………There has taken place no mis carriage of justice in passing the order of confirmation of sale. Then once an order of confirmation of sale has been passed, after consideration of the objections taken against the sale, by the judgment-debtors, it should not be set aside on flimsy grounds, particularly when no injustice has resulted. In case the application filed by the present applicant J.D is allowed, it would amount to misuse of the powers of the Court……”

7. Yashodanand Garg, who is applicant in the present revision, had filed an objection under S. 47 C.P.C in view of the order of review dt. Dec. 19, 1964. That objection was also rejected by an order of April 18, 1978. Yashodanand Garg has assailed that order in this revision. The applicant is one of the sons of Parmanand Garg. It may be noticed that initially Yashodanand Garg had filed Execution First Appeal No. 163 of 1978 against the order dt. April 19, 1978 which was dismissed as not maintainable.

8. Sri Rajeshwari Prasad, who has appeared on behalf of the judgment-debtor applicant, has urged that the effect of the order of Dec. 19, 1964, by which the earlier order of Aug. 8, 1964 rejecting the objection against the sale held on July 16, 1964 had been reviewed, was that the sale fell through as the Execution Application No. 7 of 1961 was found to be not maintainable. The confirmation of the sale by an order of Sept. 7, 1973 was of no consequence. Also, because in spite of an application dt. Aug. 2, 1972 made by Lav Garg and Kush Garg not to confirm the sale without hearing them, after the record had been received back at Kanpur form this Court, the order of confirmation of sale made on Sept. 7, 1973 without hearing the judgment-debtors, was void. He has further urged that on the finding of the executing Court in its order dt. Dec. 19, 1964 that execution case No. 11 of 1957 related only to the simple money decree and no compromise could be made there in respect of the mortgage decree, it was obvious that proceedings in Execution Case No. 7 of 1961 on the basis of the compromise, said to have been arrived at in Execution Case No. 11 of 1967, were not maintainable and the entire proceedings, including the sale dt. July 16, 1964, are void. As such, the auction purchasers are not entitled to possession of the house on the basis of the sale dt. July 16, 1964.

9. True it is, as urged by Sri Rajeshwari Prasad that in a proceeding for execution of a simple money decree normally, a compromise in respect of mortgage decree cannot be arrived at and that nothing in O. XXIII applies as such to proceedings in an execution of a decree or order as provided by R. 4 of O. XXIII, yet, the parties are not precluded from agreeing that the decree may be executed in a particular manner. If such agreement is arrived at between them, the Court would be reluctant not to give effect to it. What is, in essence, to be ensured is that the interest of a decree holder is not jeopardised while extending some facility to the judgment-debtor, for meeting the obligation arising under the decree, when both of them expressed, to the satisfaction of the Court, mutual readiness for an agreed manner of execution of the decree. Cl. (e) of S. 51, C.P.C would sustain the action of the Court except when some statutory prohibition results in a restraint upon its powers. The principle accepted by this Court in Ram Sewak v. Ram Sahai, AIR 1952 All 169 and Kanhaiya Lal v. Unraro Singh 1958 All LJ 640 and the Supreme Court in Moti Lal v. Mahmood Hasan Khan, AIR 1968 SC 1087 fully supports this view. The submission of Sri Rajeshwari Prasad basically is that having regard to the specific provisions contained in O. XXI R. 11(2)(j)(i), R. 54, R. 64 and, in particular, R. 66, the sale of the property in the present case could only be attributed to execution Case No. 11 of 1957 and the order on the review application made on Dec. 19, 1964 (Annexure C to the counter-affidavit filed in the stay matter in this revision by the decree holder Bank) recognises that the application for execution, as made by the decree holder, seeking recovery of the consolidated amount under the compromise by sale of the property was incorrect. As such, the sale made on July 16, 1964 should be treated to have been automatically fallen through. The permission given by the Court to the decree holder to bifurcate the amount in the same application under that order could not lend legitimacy to the sale. This submission overlooks that the executing Court took care not to say anything about the effect of the order passed by it on the sale already held. In fact, what it said was that:

“It was argued by the applicant's counsel that the execution itself should be dismissed. I do not agree with this view at all. It is clear that the compromise was reached between the parties and the two amounts were consolidated and the decree holder had honestly and correctly moved for execution of the decree of the consolidated amount. If it is found that the decree for the consolidated amount is not executable, the decree holder should be given an opportunity to bifurcate the amount in the same execution application. I have already observed that J.D had been filing objections earlier with a view to delay the execution proceedings. Dismissal of the execution application would unnecessarily delay the proceedings for the recovery of the amount and would be unjust and improper.”

10. The fact that the executing Court did not wish to interfere with all that had happened under the decree till then is more than apparent.

11. The inference of law sought to be drawn by Sri Rajeshwari Prasad from this order about the fate of the sale needs no serious consideration as the matter is being considered by this Court in it's discretionary jurisdiction under S. 115 C.P.C Nor is it necessary to pronounce upon the correctness or otherwise of the plea that the sale having been confirmed could not be set aside which principle, reiterated in Janak Raj v. Gurdial Singh, AIR 1967 SC 608, according to Sri Rajeshwari Prasad, did not apply to the instant case where the sale itself was non est. What has, in reality, to be seen, before the applicant can be held entitled to relief in these discretionry proceedings is whether there is miscarriage of justice due to the alleged flaw in the execution of the decree?

12. It is not in doubt that a valid decree existed in favour of the decree holder. It is also not in doubt that the decree holder and the judgment debtor agreed that in place of the amount of simple money decree and that of the mortgage decree, a consolidated sum be paid by the judgment debtor to the decree holder and that the Court put its seal over this agreement between the parties in execution case No. 11 of 1957. The sale made on July 16, 1964 was for a sum of Rs. 1,00,O0O/- The specific objection in Misc. case No. 25 of 1964, which was an objection under O. XXI R. 90 C.P.C, about the adequacy of the price (as point No. 5) was answered in favour of the auction purchasers by the IInd Addl. Civil Judge, Kanpur in his order dt. Sept. 14, 1965. That order is paper No. 53-Ga on the record of the Court below. The learned Judge held, on consideration of the evidence placed before him, that the sale price was not inadequate and that a fair bid having taken place, there was no reason to set aside the sale on the ground of inadequacy of price. The annual value of the property was near about Rs. 6000/- which, on multiplication by twenty, put the value at Rs. 1,20,000/-. The property had been sold with difficulty after three attempts. These conclusions of the learned Judge made it abundantly clear that when sold, the property fetched a proper price. The fact that the price has now undergone substantial escalation should not be enough to persuade this Court to hold that the judgment debtor was prejudiced by the sale made in July, 1964 on the basis of an incorrect execution application.

13. The exercise of jurisdiction under S. 115 C.P.C is not a matter of course. Even where an error of jurisdiction is committed by the Court below, but the action taken by it is not proved to have resulted in injustice, this Court would be loath to interfere with it. The supervisory jurisdiction contained in S. 115 C.P.C is intended to ensure that justice is done between the parties. The absence of substantial injury to an applicant, irrespective of an error in procedure or in exercise of jurisdiction by the Court below, should be enough to decline relief to him in proceedings under S. 115 C.P.C This is what has been held by Division Benches of this Court in Fateh Lal…Auction-Purchaser Applicant; v. Sher Singh…Judgment-Debtor Opposite-Party., AIR 1925 All 264 and Mahabir Prasad v. Raghu Nath Saran, AIR 1934 All 430 while dealing with matters arising out of execution proceedings in respect of exercise of jurisdiction under S. 115 C.P.C

14. In the circumstances of the present case, I am not inclined to intervene in the matter.

15. The revision deserves to be and is dismissed though the parties are left to bear their own costs.

16. Revision dismissed.