BHIKCHAND S/O DHONDIRAM MUTHA (DECEASED) THROUGH LRS. versus SHAMABAI DHANRAJ GUGALE (DECEASED) THROUGH LRS.

BHIKCHAND S/O DHONDIRAM MUTHA (DECEASED) THROUGH LRS. versus SHAMABAI DHANRAJ GUGALE (DECEASED) THROUGH LRS.

The Supreme Court held that Section 144 CPC mandates restitution when a decree is varied or modified so as to place parties, so far as may be, in the position they would have occupied but for the execution; where a decree-holder purchased at the execution sale (and the purchaser/assignee had knowledge of pending restitution proceedings) the sale cannot be allowed to stand after material variation of the decree; the Executing Court erred in selling all attached properties when a part would have sufficed to satisfy the decretal amount, causing undue loss to the judgment debtor; accordingly the High Court order is set aside, the appellant's application under Section 144 CPC is allowed, the...

Parties
Appellant / Judgment Debtor: Bhikchand S/o Dhondiram Mutha (Deceased) Through Lrs.; Respondent / Original Plaintiff and Decree Holder: Shamabai Dhanraj Gugale (Deceased) Through Lrs.; Third Party Purchaser (purchaser From Decree Holder): Respondent No.3
Jurisdiction
India
Judgment Date
14 May 2024
Procedural Posture
Civil Appeal / Appeal to the Supreme Court Against Judgment and Order Dated 05.06.2017 of the High Court of Bombay (sa No. 338 of 1994)
Outcome
Appeal allowed
Legal Topics
Restitution Under Section 144 CPC, Execution Sale and Auction, Valuation and Attachment Panchanama, Bona Fide Purchaser and Notice, Sale of Whole Property Vs Part Sufficient to Satisfy Decree
Civil Procedure Execution Property Law Restitution Under Section 144 CPC Execution Sale and Auction Valuation and Attachment Panchanama Bona Fide Purchaser and Notice Sale of Whole Property Vs Part Sufficient to Satisfy Decree

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Parties

Bhikchand S/o Dhondiram Mutha (Deceased) Through Lrs.

Appellant / Judgment Debtor

Shamabai Dhanraj Gugale (Deceased) Through Lrs.

Respondent / Original Plaintiff and Decree Holder

Respondent No.3

Third Party Purchaser (purchaser From Decree Holder)

Procedural Posture

Civil Appeal / Appeal to the Supreme Court Against Judgment and Order Dated 05.06.2017 of the High Court of Bombay (sa No. 338 of 1994)

Legal Issues

  1. 1 Whether the case is fit for restitution under Section 144 CPC after variation of decree
  2. 2 Whether a decree-holder who purchases at auction can retain the property after the decree is varied or modified
  3. 3 Whether a third-party purchaser with knowledge of pending restitution/appeal can claim to be a bona fide purchaser and resist restitution

Ratio Decidendi

The Supreme Court held that Section 144 CPC mandates restitution when a decree is varied or modified so as to place parties, so far as may be, in the position they would have occupied but for the execution; where a decree-holder purchased at the execution sale (and the purchaser/assignee had knowledge of pending restitution proceedings) the sale cannot be allowed to stand after material variation of the decree; the Executing Court erred in selling all attached properties when a part would have sufficed to satisfy the decretal amount, causing undue loss to the judgment debtor; accordingly the High Court order is set aside, the appellant's application under Section 144 CPC is allowed, the...

Court Disposition

Appeal allowed

Orders

  • Order dated 05.06.2017 of the High Court of Bombay is set aside
  • Appellants' application under Section 144 CPC is allowed