2013 (10) TMI 1377

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....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 ₹ 6,100/-, being refund of earnest money. An ex parte decre....

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....n the meantime, on 12.11.1990, the petitioner deposited entire purchase money and sale certificate was issued in their favour by the Executing Court. 4. The revision petition of the judgment debtors (C.O. 3515/1990) was finally heard by the High Court and allowed on 10.4.1992. 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 ₹ 8,00,000/- which was sold for a partly amount of ₹ 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 of C.P.C. for depositing the requisite amount in the....

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....t debtor and then permitting him to deposit the amount as per order passed, according to law. 5. After receiving the order, aforesaid order of the High Court, the Executing Court gave the direction to the Shristadar 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 ₹ 1.14 lakhs. Direction was given to the JD's to deposit the amount. This order was challenged by the judgment debtors questioning the calculations made and submitted that decretal amount of ₹ 6,600/- could not become ₹ 1.14 lakhs even after adding interest etc. The High Court vide orders dated 22.9.1992 set aside this order of the Execution Court as well on the ground ....

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....steps to disburse to the purchaser and the decree holder their respective dues as contemplated under clauses (a) of sub rule (1) of rule 89 of Order 21 of 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 Indian Stamp Act, 1899. The learned executing court shall pass an order of 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....