A.K Sikri, J.— 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 the 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 need to be traversed for this purpose are recapitulated below: way back in the year 1965, 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 6100, being refund of earnest money. An ex parte decree was passed on 23-12-1967 against Respondents 1 to 4, 6 and 7 herein (hereinafter to be referred as “the judgment-debtors”). This decree was in the sum of Rs 6600 (Rs 6100 money claimed + Rs 500 as costs). The judgment-debtors filed an application for setting aside the ex parte decree which was dismissed and appeals thereagainst were also dismissed. This decree thus, became final.
3. The execution case was filed on 24-9-1970 by the decree-holder. In these execution proceedings, some objections were filed by the judgment-debtors. The executing court even gave opportunity to the judgment-debtors to deposit the decretal amount. However, ultimately on 7-7-1990, the property, namely, 11 cottahs of land with a two-storeyed 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 along with 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 4 herein filed an application in the execution case for intimation as to how the decretal amount be deposited. This petition was however rejected by the executing court on 8-8-1990. Against this order, a revision petition was filed before the High Court under Section 115 of the Code of Civil Procedure. On 9-11-1990 it was registered as CO No. 3515 of 1990. In the meantime, on 12-11-1990, the petitioner deposited the entire purchase money and sale certificate was issued in their favour by the executing court.
4. The revision petition of the judgment-debtors (CO No. 3515 of 1990) was finally heard by the High Court and allowed on 10-4-1992 AIR 1993 Cal 14. The High Court in the said order noted the submission of the judgment-debtors to the effect that at the time of auction of the property value thereof was more than Rs 8,00,000 which was sold for a paltry amount of Rs 1.5 lakhs. It was also pleaded that as the judgment-debtors could not obtain particulars of the auction-sale through their lawyers, they could not file an application under Order 21 Rule 89 CPC for depositing the requisite amount in the execution case and get the sale set aside. On coming to know of the auction-sale, they moved the application for ascertaining the dues for the purpose of filing application under Order 21 Rule 89 CPC. But the executing court instead of giving information put the said application to a future date i.e on 8-8-1990 and thereafter dismissed the same. The High Court noted the provisions of Order 21 Rule 89 CPC, as per which a person interested in setting aside the sale can deposit in court a sum equal to 5% of the auction-purchaser and also for payment through the decree-holder, the amount specified in the proclamation of sale. On this basis, the High Court concluded that it was necessary that the amount should be determined before the deposit is made. Though it is the responsibility of the applicant to see that the correct amount is deposited, however, some sort of ministerial work has got to be done before the determination of the correctness of the amount. Therefore, the executing court was in error by not disclosing the amount which was to be deposited and the judgment-debtors should not suffer because of the mistake of the court. On these grounds, the order of the executing court was set aside with direction that the court below should proceed from the stage when the application for determination of the amount to be deposited was filed on 10-7-1990. Direction was given to the court to determine the amount to be deposited by the applicant/judgment-debtor and then permitting him to deposit the amount as per order passed, according to law.
5. After receiving the aforesaid order of the High Court, the executing court gave the direction to the Sheristadar to submit a report of the calculation of the amount. He, accordingly gave his report stating that the judgment-debtors had to pay a sum of Rs 1.14 lakhs. Direction was given to the judgment-debtors to deposit the amount. This order was challenged by the judgment-debtors questioning the calculations made and submitting that decretal amount of Rs 6600 could not become Rs 1.14 lakhs even after adding interest, etc. The High Court vide orders dated 22-9-1992 set aside this order of the executing court as well on the ground that calculations were wrong. Directions were given to the executing court to make the calculation afresh.
6. Fresh calculations were made by Sheristadar on 24-9-1992 significantly reducing the amount due under decree to Rs 42,055.87 from earlier calculation of Rs 1.14 lakhs. On that very day, the trial court directed the judgment-debtors to deposit the said amount by “November 1992”. This order was also challenged by the judgment-debtors by approaching the High Court by means of a revision petition questioning the calculations. The High Court even granted stay of the impugned order initially. This revision petition kept pending for quite some time and was ultimately decided by the impugned order only on 8-6-2004.
7. Before the High Court, the petitioner or the decree-holder did not appear despite services of notice. The High Court noted that the calculations are correctly arrived at. At the same time it deemed it proper to give one opportunity to the judgment-debtors to deposit the amount and the operative portion of the said order reads as under:
“Accordingly we dispose of the revisional application by modifying the order passed by the learned executing court on 24-9-1992 in the manner indicated hereinbelow. The judgment-debtor shall deposit with the executing court a sum of Rs 42,055.87 as calculated by the office of the executing court, within one month from date. On deposit of the said sum, the sale shall stand set aside. The learned executing court shall take steps to disburse to the purchaser and the decree-holder their respective dues as contemplated under clause (a) of sub-rule (1) of Rule 89 of Order 21 the Code. In addition to the above, the executing court shall make over to the judgment-debtors the stamps purchased by the auction-purchaser for the purpose of the sale certificate so that the amount of the stamps may be recorded by the judgment-debtor in accordance with the provisions of Section 54 of the Stamp Act, 1899. The learned executing court shall pass an order on the basis whereof the judgment-debtor would be entitled to receive back the amount of the stamp duty although the same had been purchased in the name of the auction-purchaser who will be entitled to receive back the cash value thereof. The learned executing court is directed to take steps to dispose of the matter expeditiously since the same has been pending for a long time.”
8. In sum and substance the position which emerges on the auction of the property in question can be summarised as below: the property was put up on auction on July 1970 and the bid of the petitioner in a sum of Rs 1.5 lakhs was the highest. The auction-sale was confirmed on 9-7-1990. Under Order 21 Rule 89 CPC, a chance is given to the applicant to deposit the amount payable including 5% for the successful auction-purchases and on deposit of that amount the executing court will set aside the sale on 10-7-1990 itself. Respondent 4, judgment-debtor has filed the application requesting the executing court to intimate the amount to be deposited so that he could file application under Order 21 Rule 89 CPC. Though this application was rejected, the order of the executing court was set aside by the High Court allowing the revision of the judgment-debtor and directing the executing court to intimate the same to the judgment-debtor. In the first instance, the amount calculated was Rs 1.14 lakhs which turned out to be wrong calculations, inasmuch as the High Court set aside the said order and on recalculation, the amount payable was calculated at Rs 42,055.87. The executing court had directed the judgment-debtors to pay this amount which was to be paid by 11-11-1992. However, before that the judgment-debtor filed another revision petition. This revision petition is decided by the impugned order passed on 8-6-2004. No doubt, the amount calculated is found to be correct but the High Court chose to give one opportunity to the judgment-debtor to deposit the amount as up to that stage the controversy regarding actual payment had not been settled.
9. In these circumstances, exercise of discretion in the aforesaid manner cannot be found to be erroneous and contrary to law which warrants interference by this Court under Article 136 of the Constitution of India. Further, we do not find any substantial question of law. It is also to be kept in mind that immediately after the impugned order of the High Court the judgment-debtors had deposited the amount. They should not be made to lose the property, in the aforesaid circumstances.
10. We thus, dismiss the special leave petition in limine.