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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO.1482 OF 2020 (@ SPECIAL LEAVE PETITION (CIVIL) NO. 28113 OF 2018)

M/S. GOLDEN EARTH GROVES LTD.                     ...APPELLANT(S)

                               VERSUS

M/S. ION EXHANGE ENVIRO FARMS LTD.                ...RESPONDENT(S)

O R D E R

R. BANUMATHI,J.

Leave granted.

2. Being aggrieved by allowing of the Revision Petition

filed by the respondent-decree holder and setting aside the

order passed in E.A.No. 946/2006 in E.P.No. 267 of 2005 in

O.S. No. 271 of 1999 (on the file of Principal Sub Court,

Tirunelveli), the appellant-judgment debtor has preferred this

appeal.

3. The brief facts of the case are as follows:

Respondent filed a suit being O.S. No. 271 of 1999

against the appellant with respect to recovery of money. It

was  decreed  in  favour  of  respondent  vide  order  dated

22.02.2002. Respondent filed Execution Petition No. 158/2004

before  the  Court  which  was  dismissed  for  default  on

05.10.2004. Respondent filed another Execution Petition No.

267/2005.  As  no  one  appeared  on  behalf  of  the  appellant-

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judgment debtor, the order was passed ex-parte in Execution

Petition No. 267/2005 on 26.09.2005. Summons were returned;

due to non-serving of summons, a publication was also made

with  respect  to  the  auction  of  the  property  in  the  local

newspaper.  Subsequently,  the  property  was  sold  in  court

auction on 03.02.2006 and the respondent-decree holder himself

made a bid of the suit property for Rs.6,00,001/-. The sale

was confirmed in the favour of respondent.

4. The appellant aggrieved by the ex-parte order dated

26.09.2005 passed in Execution Petition No. 267/2005 filed an

application before the Sub-Judge under Order 21 Rule 106 CPC.

The appellant contended that he came to know about the ex-

parte order only on 04.08.2006. Learned Sub-Judge vide order

dated  04.04.2008  allowed  the  application  filed  by  the

appellant on the ground that : (i) when the summon was sent to

the appellant’s address, the same was returned stating the

remark  that  the  appellant  was  not  residing  at  that  old

address. It was held that the summon should have been sent

properly to the correct address of appellant. It was further

held that since there was no possibility for appellant to know

about the Execution order and (ii) that appellant is entitled

for the relief prayed by him as both the parties should be

given equal opportunities  to be heard. Ex-parte order dated

26.09.2005 was set aside and Execution Petition was directed

to be heard afresh.

5. Being  aggrieved,  the  appellant-judgment  debtor  has

preferred revision before the High Court. The High Court vide

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order  dated  20.09.2017  allowed  CRP  on  the  ground  that  the

appellant-judgment debtor had the knowledge about the ex-parte

order, newspaper publication was also made and the notice of

auction was pasted on the suit property. But the appellant

did  not  take  any  action  thereafter.  When  the  auction  was

confirmed in favour of respondent, only thereafter appellant

objected.  

6. We have heard Mr. V. Balaji, learned counsel appearing

on behalf of the appellant as well as Mr. Amey Nargolkar,

learned counsel appearing on behalf of the respondent-decree

holder  and  perused  the  impugned  judgment  and  materials  on

record.

7. As pointed out by the Execution Court that when the

summon  was  sent  to  the  appellant’s  address,  the  same  was

returned with the remark that the appellant was not residing

at that old address. When summon has not been duly served upon

the appellant-judgment debtor, the Execution Court should have

ordered  issuance  of  fresh  notice.  On  the  other  hand,  the

appellant was set ex-parte on 04.08.2006 and the proceedings

in Execution Petition proceeded further and the property was

put to auction and the respondent-decree holder himself has

become  the  auction  purchaser  in  the  sale  conducted  on

03.02.2006.  Though  it  is  stated  that  the  publication  was

effected by the respondent-decree holder and it is also stated

that the publication was in Malayalam. There is nothing on

record to show that the appellant-judgment debtor was well

conversant  with   Malayalam.  When  there  was  no  effective

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service on the appellant-judgment debtor, in our view, the

Execution Court ought to have issued a fresh notice rather

than ordering  auction of the property. In such view of the

matter, the impugned order of the High Court is liable to be

set aside. Consequently the Execution Petition No. 267/2005

has to be restored.

8. Learned counsel appearing on behalf of the respondent-

decree holder, on instructions, submitted that if the decree

amount is paid with such interest as ordered by the Court, the

respondent would be satisfied.  Considering the submissions of

the learned counsel appearing on behalf of the respondent-

decree holder and the facts and circumstances of the case, we

deem it appropriate that in full satisfaction of the decree

passed in O.S. No. 271 of 1999, the respondent-decree holder

would be entitled to receive the sum of Rs.12,50,000/- (Rupees

twelve lakhs fifty thousand).

9.  Pursuant to the order of this Court dated 16.11.2018,

the appellant-judgment debtor has already deposited an amount

of Rs. 10,00,000/- (Rs. 5,00,000/- plus Rs.5,00,000/-) before

the Execution Court. In addition to Rs. 10,00,000/- (Rupees

ten  lakhs).   The  respondent-decree  holder  is  permitted  to

withdraw  the  amount  of  Rs.  10,00,000/-  (Rupees  ten  lakhs)

deposited before the Execution Court,  Principal Subordinate

Judge, Tirunelveli. The appellant-judgment debtor shall pay an

amount of Rs.2,50,000/- (Rupees two lakhs fifty thousand) in

the name of the respondent-decree holder within a period of

eight weeks.  The amount of Rs. 12,50,000/- (Rupees twelve

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lakhs and fifty thousand) is in full satisfaction of all the

claims of the respondent-decree holder. Since the respondent-

decree holder has been paid the decree amount (as agreed by

the parties), the court auction sale held on 03.02.2006 is set

aside.  

10. The  appellant  is  at  liberty  to  make  necessary

application  before  the  concerned  sub  Registrar  for  making

appropriate entries in relation to cancellation of the court

auction  sale  dated  03.02.2006.  The  concerned  Sub-Registrar

shall take note of this order and make necessary entries in

the Registers.

11. The appeal is, accordingly, allowed.

……………………………………………………….J. [R. BANUMATHI]

……………………………………………………..J. [S. ABDUL NAZEER}

NEW DELHI ……………………………………………………….J. 11TH FEBRUARY, 2020 [A.S. BOPANNA]