KUMAR SUDHENDU NARAIN DEB versus MRS. RENUKA BISWAS AND ORS.

KUMAR SUDHENDU NARAIN DEB versus MRS. RENUKA BISWAS AND ORS.

The only operative preliminary decree is the one substituted by the High Court, and if the obligations under that decree are fulfilled, the auction sale and confirmation automatically become non est; the auction purchaser cannot claim to be party to the proceedings at the stage prior to the substituted preliminary decree, and objections to the auction sale are sustainable under Section 47 CPC.

Parties
Appellant: Kumar Sudhendu Narain Deb; Respondent: Mrs. Renuka Biswas and Ors.
Jurisdiction
India
Judgment Date
13 November 1991
Procedural Posture
Civil Appeal / Appeal From High Court Judgment by Certificate
Outcome
Appeal allowed
Legal Topics
Execution of Decrees, Auction Sales, Substituted Preliminary Decree, Order 34 CPC, Section 47 CPC
Civil Procedure Mortgage Law Execution of Decrees Auction Sales Substituted Preliminary Decree Order 34 CPC Section 47 CPC

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Parties

Kumar Sudhendu Narain Deb

Appellant

Mrs. Renuka Biswas and Ors.

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment by Certificate

Legal Issues

  1. 1 Whether a court sale held in execution of a final decree passed in a suit for recovery of mortgage money can be upset under section 47 CPC upon displacement of the preliminary decree upon which such final decree was based.

Ratio Decidendi

The only operative preliminary decree is the one substituted by the High Court, and if the obligations under that decree are fulfilled, the auction sale and confirmation automatically become non est; the auction purchaser cannot claim to be party to the proceedings at the stage prior to the substituted preliminary decree, and objections to the auction sale are sustainable under Section 47 CPC.

Court Disposition

Appeal allowed

Orders

  • Auction sale in favour of auction purchasers and confirmation set aside as non est.
  • Appellant directed to pay to the auction-purchasers interest on the auction purchase money (Rs.1,05,000) lying in court since 1963, quantified as equivalent to the sum deposited.