Case Note & Summary
The petitioners, Lalit Malick, Shyam Malick, and Madhu Bhatti, filed a writ petition challenging the execution proceedings of a decree passed in Commercial Suit No. 332/1972. The original decree holder, Bajinder Singh, had obtained a decree against Joginder Singh Sawhney (respondent no. 2) for recovery of Rs. 10,000. The decree was transferred to the City Civil Court at Bombay for execution, and the flat in question (Flat No. A/5, Ravidarshan C.H.S. Ltd., Carter Road, Bandra West, Mumbai) was attached. The petitioners claimed that they were in possession of the flat under an agreement for sale from the original owner, Abdul Gafoor Khan, and that the share certificate was mistakenly issued in the name of respondent no. 2. They offered to pay the decretal amount to satisfy the decree. The decree holder (now respondent no. 3, Bhupinder Singh, as assignee) insisted on auction of the flat. The court framed the issue whether a decree holder can insist on auction when the person in possession is willing to pay. The court held that the decree holder cannot insist on auction and directed the petitioners to deposit the decretal amount of Rs. 10,000 with interest and costs as determined by the executing court. Upon deposit, the attachment shall be lifted and the execution proceedings closed. The petition was allowed.
Headnote
A) Civil Procedure - Execution of Decree - Attachment and Sale - Order 21 Rules 64, 83 Code of Civil Procedure, 1908 - The court held that when a property is attached and the person in possession offers to pay the decretal amount, the decree holder cannot insist on auction. The court directed that the petitioners be permitted to deposit the decretal amount and costs, and upon such deposit, the attachment shall be lifted and the execution proceedings shall be closed. (Paras 1, 10-12)
Issue of Consideration
Whether a decree holder and a judgment debtor can insist on auction of a flat under attachment when the petitioners who are in possession are willing to satisfy the decree by paying the decretal amount.
Final Decision
The petition is allowed. The petitioners are permitted to deposit the decretal amount of Rs. 10,000 with interest and costs as determined by the executing court. Upon such deposit, the attachment shall be lifted and the execution proceedings shall be closed. The decree holder cannot insist on auction.
Law Points
- Execution of decree
- attachment of property
- right of decree holder to insist on auction
- right of judgment debtor to pay decretal amount
- Order 21 Rule 64 CPC
- Order 21 Rule 83 CPC
Case Details
2011 LawText (BOM) (06) 15
Writ Petition No. 3451 of 2007
Mr. G. S. Godbole i/b. A. Bharat & Co. for Petitioners, Mr. Kannan Kapur with Mr. Pankaj Shah i/b. Pankaj Shah for Respondent No. 2, Mr. V. K. Kapur, Sr. Advocate with Ms. Usha Rahi i/b. Mayur Narendra & Co. for Respondent No. 3
Lalit Malick, Shyam Malick, Madhu Bhatti
Bajinder Singh through his Assignee Satnam Singh, Joginder Singh Sawhaney, Bhupinder Singh s/o. Triloksingh
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Nature of Litigation
Writ petition challenging execution proceedings and attachment of flat.
Remedy Sought
Petitioners sought to be allowed to pay the decretal amount and have the attachment lifted, preventing auction of the flat.
Filing Reason
Petitioners, in possession of the flat, were willing to satisfy the decree but the decree holder insisted on auction.
Previous Decisions
Commercial Suit No. 332/1972 decreed on 26th February, 1975; decree transferred to City Civil Court at Bombay for execution; attachment of flat ordered.
Issues
Whether a decree holder can insist on auction of attached property when the person in possession is willing to pay the decretal amount.
Submissions/Arguments
Petitioners argued they were in possession under an agreement for sale and willing to pay the decretal amount.
Respondent no. 3 (decree holder) insisted on auction of the flat.
Ratio Decidendi
A decree holder cannot insist on auction of attached property when the person in possession is willing to satisfy the decree by paying the decretal amount. The executing court should permit such payment and close the proceedings.
Judgment Excerpts
An interesting question, as to whether a decree holder and a judgment debtor can insist on auction of a flat under attachment, when the petitioners who are admittedly in possession of the said flat, are willing to satisfy the decree by paying the decretal amount, arises for consideration in the present petition.
In the result, the petition is allowed. The petitioners are permitted to deposit the decretal amount of Rs.10,000/- with interest and costs as determined by the executing court. On such deposit being made, the attachment shall stand lifted and the execution proceedings shall stand closed.
Procedural History
Commercial Suit No. 332/1972 filed in Delhi, decreed on 26th February, 1975. Decree transferred to City Civil Court at Bombay for execution. Attachment of flat ordered. Petitioners filed writ petition challenging execution.
Acts & Sections
- Code of Civil Procedure, 1908: Order 21 Rule 64, Order 21 Rule 83
