Yatinder Kumar Aggarwal vs Mukund Swarup

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

CONTEMPT PETITION (CRIMINAL) NO. 2/2012 IN CIVIL APPEAL NO. 8398/2013

YATINDER KUMAR AGGARWAL & ORS. PETITIONER(S)

VERSUS

MUKUND SWARUP & ORS. RESPONDENT(S)

WITH REVIEW PETITION (C) NO. 57/2014 IN CIVIL APPEAL NO. 8398/2013

MANJU SWAROOP (D) THROUGH LRS. PETITIONER(S)

VERSUS

BHUPESHWAR PRASAD (D) THROUGH LRS. RESPONDENT(S)

J U D G M E N T

A.K.SIKRI,J.

Signature Not Verified Digitally signed by SUSHIL KUMAR RAKHEJA Date: 2019.01.22 17:56:55 IST Reason:

To state the facts in brief, a civil suit was filed

by Hari Kishan Das (hereinafter referred to as the 2

“plaintiff”) way back in the year 1955. It was a money

suit in which decree in the sum of Rs. 11,666.66 p. was

passed in favour of the plaintiff and against M/s. Diwan

Kripa Ram Radha Kishan (hereinafter referred to as the

“defendant”). This decree was upheld by the District

Judge and by the High Court of Allahabad in Second

Appeal. The problem which arose thereafter is in the

execution proceedings. Execution Case No. 29 of 1962 was

filed by the plaintiff/decree holder as the decree was

not fully discharged. Auction notice was published on

16.04.1964. At that stage the defendant/Judgment Debtor

filed an application under Order XXI Rule 83 of the Civil

Procedure Code, 1908 for postponement of sale pleading

that he would raise the decreetal amount and pay the same

to the plaintiff. Ultimately, on 08.10.1964 the parties

came to an understanding on the basis of which statement

was recorded by the Executing Court to the effect that

four months' time be given to the defendant/Judgment

Debtor to deposit the entire amount. It was also agreed

that if the amount was not deposited in four months, the

property would be sold without proclamation. Though the

defendant/Judgment Debtor paid certain amount but could

not make the full payment as per his statement. He filed 3

an application for extension in which certain orders were

passed. However, ultimately the property was sold and

purchased by the son of the plaintiff for a sum of Rs.

13,700/-. Objections against the same were filed stating

certain irregularities in the conduct of the auction

which were dismissed. Appeal thereagainst was also

dismissed by the High Court. That order was challenged

in C.A. No. 8398 of 2013 which was dismissed by this

Court vide judgment dated 20.09.2013. In the said

judgment it is, inter alia, noted that the decreetal

amount was admittedly not paid by the defendant/Judgment

Debtor which led to the dismissal of the Execution Second

Appeal by the High Court.

The instant review petition is preferred by the

defendant/Judgment Debtor ('the appellant in the said

appeal') seeking review of the said judgment dated

20.09.2013. It may also be noted at this stage that

during the pendency of the Special Leave Petition/Appeal

interim orders were passed restraining the

defendant/Judgment Debtor from disposing of the property

in question. However, as per the plaintiff in violation

of those orders the defendant/Judgment Debtor sold the 4

property to certain persons. Because of this reason,

contempt petition is preferred by the plaintiff.

Arguments were heard in these two cases which are

disposed of by this common order.

Adverting to the review petition, in the first

instance, the case set up by the defendant/review

petitioner is that this Court committed a factual error

in its judgment dated 20.09.2013 by recording that the

entire decreetal amount admittedly was not paid by the

defendant/Judgment Debtor because of which execution

second appeal was dismissed by the High Court. It is

submitted by Mr. D.K. Garg, learned counsel appearing on

behalf of the defendant/Judgment Debtor, that the entire

amount stood paid and the decree had been satisfied. In

order to buttress his submission learned counsel has

referred to the order dated 17.02.1971 passed by the

District Judge, Saharanpur in Misc. Appeal No. 116 of

1970. By this order the District Judge, Saharanpur

allowed the appeal of the defendant/Judgment Debtor

specifically holding that the amount as directed by the

High Court had rightly been deposited through the bank

drafts and that amount of Rs. 13,800/- which was

deposited would be deemed to have complied with the order 5

of the High Court dated 11.05.1970. It is also pointed

out that against the said order the plaintiff/decree

holder had filed an appeal which was dismissed by the

High Court on 15.10.2001. According to Mr. Garg the

defendant/Judgment Debtor, in fact, paid the amount in

excess. Along with the review petition, the

defendant/Judgment Debtor has filed various challans by

which the amount was deposited in the executing court

from time to time. The details of which are as under.

Amount due as mentioned in the Rs.22,843.70 Proclamation of Sale Amounted deposited by the petitioner Rs.9,000.00 pursuant to the order of the Executing Court dated 08.10.1964. The order was a consent order by which 4 months time was given to the Judgment Debtor to deposit the entire amount with the executing court. The amounts deposited by the petitioner in 4 months is as under:-

24.10.1964 : Rs. 3,000/- 11.11.1964 : Rs. 2,000/- 11.12.1964 : Rs. 2,000/- 09.01.1965 : Rs. 2,000/-

Thus, before the date as agreed (7.2.1965) the respondent deposited only Rs. 9,000/- Further amount deposited by the Judgment Rs. 10,000/- Debtor before the date of auction:-

23.02.1965 : Rs. 2,000/- 12.03.1965 : Rs. 2,000/- 15.04.1965 : Rs. 2,000/- 20.07.1965 : Rs. 2,000/- 16.08.1965 : Rs. 2,000/-

6 Amount outstanding as on 29.10.1965 Rs.3,843.70 A further amount claimed for the first Rs. 1,386.00 time in the review petition to be deposited on 02.03.1965 Amount short deposited Rs.2,457.70 Amount claimed to have been deposited on Rs.1,720.00 13.11.1965 (i.e. after the auction):

Amount still due Rs.737.70

It is, thus, pointed out by Mr. Garg that as against

the decreetal amount Rs. 11,666.66 p. the

defendant/judgment debtor had already paid a sum of Rs.

35,906/-.

Mr. Sushil Kumar Jain, learned senior counsel

appearing for the respondent, in the review petition

could not dispute the fact that payments were made by the

defendant/judgment debtor from time to time as recorded

above. These dates show that the defendant/judgment

debtor had been making payments, though in installments.

His only submission was that the order of the District

Judge is the subject matter of the appeal pending in the

High Court. The District Judge, Saharanpur has

categorically recorded that the entire decree stands

satisfied. These facts were not noted while giving the 7

judgment dated 20.09.2013, which material alters the

outcome of the case. As on today the position as per the

order of the District Judge is that the entire decree

stands satisfied. Even if the appeal of the plaintiff

succeeds and the High Court finds that some more amount

is due that may not be substantial amount, if at all and,

therefore, the defendant/judgment debtor can always be

directed to pay the amount. In these circumstances, it

would not be feasible to sell the property of the

defendant/judgment debtor. We, thus, recall our order

dated 20.09.2013 and allow the Civil Appeal No. 8398 of

2013 thereby setting aside the order of sale of the

property in question.

Coming to the contempt petition, no doubt the

contemnors have violated the orders of this Court by

selling the property. However, since the properties are

not subject matter of sale now, we are inclined to take a

lenient view of the contempt committed. The contemnors

shall pay a sum of Rs. 50,000/- as compensation to the

plaintiff/decree holder. This amount shall be paid within

four weeks.

8

The contempt petition as well as the review petition

stand disposed of in the aforesaid manner.

......................J. [A.K. SIKRI]

......................J. [S. ABDUL NAZEER]

......................J. [M.R. SHAH]

NEW DELHI;

JANUARY 22, 2019.