DIPALI BISWAS & ORS. versus NIRMALENDU MUKHERJEE & ORS.

DIPALI BISWAS & ORS. versus NIRMALENDU MUKHERJEE & ORS.

The appeal was dismissed because the appellants had multiple earlier and adequate opportunities to raise objections to inclusion of the whole property (including under Rule 54/Rule 66), they failed to adduce that the 17-decimal vacant plot could be divided and sold in parts to satisfy the decree, earlier orders and the sale certificate had attained finality, and res judicata (Section 11 Explanation VII) and provisions regarding sale becoming absolute (Section 65 and Order XXI Rules 92/94) precluded reopening the issue at the delivery stage; hence the Rule 64 objection was rightly rejected.

Parties
Appellant: DIPALI BISWAS & ORS.; Respondent: NIRMALENDU MUKHERJEE & ORS.
Jurisdiction
India
Judgment Date
05 October 2021
Procedural Posture
Civil Appeal / Appeal Against High Court Order Confirming Dismissal of Petition Under Section 47 in Execution Proceedings (c.o. No.1115 of 2007)
Outcome
Appeal dismissed
Legal Topics
Order XXI, Rule 64, Rule 66, Rule 54, Rule 92, Rule 94, Section 47, Section 65, Res Judicata, Attachment and Sale, Sale Certificate, Delivery of Possession
Civil Procedure Execution Property Law Order XXI Rule 64 Rule 66 Rule 54 Rule 92 +7 more

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Parties

DIPALI BISWAS & ORS.

Appellant

NIRMALENDU MUKHERJEE & ORS.

Respondent

Procedural Posture

Civil Appeal / Appeal Against High Court Order Confirming Dismissal of Petition Under Section 47 in Execution Proceedings (c.o. No.1115 of 2007)

Legal Issues

  1. 1 Whether non-compliance with Order XXI, Rule 64 (selling only so much of property as is necessary to satisfy the decree) vitiates the auction and gives rise to jurisdictional error
  2. 2 Whether the judgment-debtor could raise the Rule 64 objection after multiple earlier opportunities and rounds of litigation
  3. 3 Whether earlier proceedings and orders operate as res judicata (including effect of Explanation VII to Section 11)

Ratio Decidendi

The appeal was dismissed because the appellants had multiple earlier and adequate opportunities to raise objections to inclusion of the whole property (including under Rule 54/Rule 66), they failed to adduce that the 17-decimal vacant plot could be divided and sold in parts to satisfy the decree, earlier orders and the sale certificate had attained finality, and res judicata (Section 11 Explanation VII) and provisions regarding sale becoming absolute (Section 65 and Order XXI Rules 92/94) precluded reopening the issue at the delivery stage; hence the Rule 64 objection was rightly rejected.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • There will be no order as to costs