REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.10249 OF 2003

Maya Devi (dead) through Lrs. …Appellants

Versus

Smt. Raj Kumari Batra (dead)  through Lrs. & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. This  appeal  by  special  leave  arises  out  of  an  order  

passed by a Division Bench of the High Court of Punjab and  

Haryana whereby Letters Patent Appeal No.167 of 1989 filed

by the appellants has been dismissed with costs.  The facts  

giving rise to the present appeal have been set out at length  

in  the  order  impugned  in  this  appeal  hence  call  for  no  

repetition  except  to  the  extent  the  same  is  absolutely  

necessary. What is striking about the case is that a decree  

passed in favour of the respondent as far back as on 25th  

October, 1976 remains to be executed even after the lapse  

of 34 years during which period the decree holder as also  

the judgment debtor have both passed away leaving behind  

the  legacy  of  litigation  to  the  next  generation.  The  

chequered history of  a bitter  fight  which has brought the  

parties  to  this  Court  for  the  second  time  amply  

demonstrates that the real troubles of a plaintiff start only  

after he obtains a decree, thanks to the long winding legal  

procedure and the ingenuity of the lawyers who often exploit  

the same to the benefit of one party at the cost of the other.

2. A suit filed by Late Raj Kumari  the plaintiff for recovery  

of  a  sum of  Rs.60,000/-  was  decreed  in  her  favour  with  

costs by the Trial Court on 25th October, 1976 against Hans  

2

Raj,  defendant  now  deceased.  In  execution  of  the  said  

decree SCF No.9, Sector 27-D, Chandigarh was attached and  

finally sold in a public auction on 17th April, 1978, for a sum  

of  Rs.82,000/-  in  favour  of  the  decree  holder  who  was  

permitted  by  the  Executing  Court  to  participate  in  the  

auction. The judgment debtor filed his objections challenging  

the legality of the auction, but while the same were pending  

consideration,  the parties put in a written compromise on  

16th June, 1979 which, inter alia, provided that the decree  

holder would deposit a sum of Rs.35,000/- for payment to  

the judgment debtor, whereupon the latter shall handover to  

the  decree  holder  the  vacant  possession  of  the  property  

aforementioned that stood attached.  The Executing Court  

recorded  the  statement  of  the  parties  in  support  of  the  

compromise  and  adjourned  the  matter  for  passing  final  

orders.   But  before  any  such  order  could  be  made  the  

judgment debtor filed an application with a prayer for setting  

aside the compromise on the ground that the same was void  

ab-initio  and  had  been  brought  about  by  fraud.  Another  

3

application filed by him prayed for setting aside of the sale  

for non-compliance with the provisions of Order XXI Rules  

72 and 84 of the C.P.C.  The decree holder also moved an  

application  for  passing  final  orders  in  terms  of  the  

compromise stating that he had deposited the bank drafts  

for a total sum of Rs.35,000/- as the judgment debtor had  

refused to accept the said amount.  

3. The  Executing  Court  finally  made  an  order  on  30th  

August 1979 whereby it confirmed the sale in favour of the  

decree holder in accordance with the compromise between  

the  parties.  Aggrieved,  the  judgment  debtor  filed  FAO  

No.502  of  1979  before  the  High  Court  of  Punjab  and  

Haryana. The appeal failed and the contention urged before  

the High Court that the compromise entered into between  

the  parties  was  vitiated  by  fraud  was  repelled.  The  High  

Court  further  held  that  the  sale  in  favour  of  the  decree  

holder was not in violation of the provisions of Order XXI,  

Rules  84  and  85  of  CPC.  A  Letters  Patent  Appeal  filed  

against the order passed by the learned Single Judge also  

4

failed and was dismissed on 18th November, 1981. A Special  

Leave Petition against the said two orders was dismissed by  

this Court  in limine on 5th January, 1982 thereby bringing  

finality to the question of legality of the sale of the property  

in  favour  of  the  decree  holder  on  the  basis  of  the  

compromise/adjustment arrived at between the parties.   

4. The judgment debtor then filed fresh objections before  

the Executing Court, inter alia, contending that the property  

bearing  SCF  No.9,  Sector  27-D,  Chandigarh,  was  exempt  

from  attachment  and  sale,  the  same  being  a  residential  

premises and the decree in question being a simple money  

decree.   The decree holder also moved an application for  

restoration  of  the  execution  proceedings  which  had  been  

adjourned  sine  die and  the  execution  file  consigned  to  

record, on account of stay issued by the High Court in the  

earlier  proceedings.  The  Executing  Court  formulated  the  

points that arose for determination and answered the same  

against the judgment debtor in terms of its order dated 25th  

September, 1984. It held that the confirmation of sale and  

5

issue of the sale certificate in favour of the decree holder  

was legal and valid and that the decree holder was entitled  

to possession of the property sold in her favour. Resultantly,  

the  Executing  Court  issued  warrants  for  delivery  of  

possession  of  the  property  in  question  in  favour  of  the  

decree holder.   

5. The  delivery  of  possession  was  for  the  third  time  

resisted by the judgment debtor on the ground that there  

was no decree for possession.  The Executing Court dealt  

with these objections in its order dated 5th October, 1987  

and noted that the issues raised by the judgment debtor had  

already been decided against him by the earlier orders of  

the  Executing  Court  dated  30th August,  1979  and  25th  

September, 1984 which orders had attained finality.  It also  

held that application dated 22nd January, 1985 under Order  

XXI  Rule  97  CPC having  been filed  by the  decree  holder  

within  the  stipulated  period  of  30  days  from the  date  of  

resistance to the delivery of possession was maintainable.  

The above order  was assailed by the judgment debtor  in  

6

Execution  First  Appeal  which  was  dismissed  by  a  learned  

Single Judge of the High Court on 26th September, 1988.  A  

Letters Patent Appeal preferred against the said order also  

failed and was dismissed on 5th October, 2001. The present  

appeal assails the correctness of the said order as noticed  

earlier.              

6. Appearing  for  the  appellant  Mr.  R.K.  Kapoor  

strenuously argued that the Executing Court had committed  

a serious irregularity in the matter of directing attachment of  

property  of  the  judgment  debtor  and  issuing  a  sale  

proclamation.  He contended that since the proclamation of  

sale was itself  fraudulent and in complete violation of the  

provisions  of  Rule  66(2)  Order  XXI  all  the  subsequent  

proceedings of auction sale, its confirmation and issuance of  

certificate etc. were a nullity in the light of the judgment of  

this Court in Desh Bandhu Gupta v. N.L. Anand 1994 (1)  

SCC 131. He further contended that the Executing Court had  

permitted the decree holder to participate in the auction of  

the property in question in violation of Order XXI Rule 72-A.  

7

He urged that if the decree in favour of the decree holder  

was a mortgage decree, it was essential for the Court to fix  

a reserve price which it had not fixed.  The order permitting  

the decree holder to participate in the auction proceedings  

was,  therefore,  illegal  and  without  jurisdiction  argued  Mr.  

Kapoor. It was further submitted that the decree holder was  

bound  to  deposit  25% of  the  amount  offered  by  him  in  

terms of Order XXI Rule 84(1) CPC which was not deposited  

and that the transfer of the execution petition pending in the  

Court of Sub Judge to the Court of Sub Judge, First Class  

where the execution proceedings arising out of the earlier  

decree were pending without notice to the judgment debtor  

was illegal. He also referred to the various interim orders  

passed by the Executing Court to show that the Court had  

acted arbitrarily and thereby illegally deprived the judgment  

debtor of his property.   

7. Relying  upon  the  decision  of  this  Court  in  Mahakal  

Automobiles and Anr. v. Kishan Swaroop Sharma 2008  

(13) SCC 113 it was urged by Mr. Kapoor that notice upon  

8

the  judgment  debtor  whose  property  was being sold  was  

necessary and any sale in the absence of such notice was a  

nullity.  Reliance  was  also  placed  on  the  decisions  of  this  

Court in Ambati Narasaya v. M. Subba Rao 1989 (Suppl.)  

2  SCC  693,  S.P.  Chengalvaraya  Naidu  v.  Jagannath  

1994 (1) SCC 1, A.R. Antulay v. R.S. Naik and Anr. 1988  

(2)  SCC  602,  in  support  of  the  submission  that  the  

procedure adopted by the Executing Court was neither just  

nor fair and not even in accordance with the provisions of  

the  CPC.  Mr.  Kapoor  also  made  a  grievance  against  the  

dismissal  of  the  first  appeal  preferred  by  the  judgment  

debtor  in limine,  by a non-speaking order.   He submitted  

that although the Division Bench had while disposing of the  

Letters Patent Appeal by the impugned judgment gone into  

the merits of the contentions urged by the appellant yet the  

same did  not  cure the defect  in the order passed by the  

Single Judge whereby the first appeal filed by the appellant  

had been dismissed without recording any reasons.         

9

8. The  litigation  between  the  parties  has  a  chequered  

history and has passed through different stages. The first  

stage  led  to  an  order  of  attachment  of  the  property  in  

question, issue of a sale proclamation, confirmation of the  

sale in favour of the decree holder by the Executing Court  

and the grant of sale certificate to her. Except two, each one  

of the contentions urged by Mr. Kapoor before us relate to  

the  procedure  adopted  and  the  order  passed  by  the  

Executing Court up to the stage of confirmation of the sale  

in favour of the decree holder. All  these contentions were  

urged  by  the  appellants  before  the  Executing  Court  who  

rejected the same and before the High Court who dismissed  

the appeals filed before it.  The view taken by the Executing  

Court and by the High Court in regard to the issues raised  

by the appellants has attained finality with the dismissal of  

the  Special  Leave  Petition  filed  against  the  said  orders  

whereby  the confirmation  of  sale  in  favour  of  the  decree  

holder  as  also  the  grant  of  sale  certificate  to  her  was  

declared  to  be  valid.  Any  attempt  to  re-agitate  the  very  

1

same questions that stand concluded by the said judgment  

and  orders  is  therefore  futile  if  not  a  clear  abuse  of  the  

process of law. In particular the question whether the decree  

under execution was a mortgage decree or a simple money  

decree, was answered in favour of the decree holder and the  

decree held to be a mortgage decree. Similarly the question  

whether  non  deposit  of  25%  of  the  bid  amount  by  the  

decree  holder,  who  was  permitted  to  participate  in  the  

auction  by  the  Executing  Court  rendered  the  sale  in  her  

favour was answered against the appellants herein. Relying  

upon the decision of this Court in  Manilal Mohanlal Shah  

& Ors. v. Sardar Syed Ahmed Sayed Mahmad and Anr.  

AIR 1954 SC 349, the Executing Court held that where the  

decree holder was himself the purchaser the requirement of  

making  a  deposit  of  25%  of  the  bid  money  was  not  

attracted. So also the challenge to the compromise entered  

into between the parties on the ground that the same was  

fraudulent  was  repelled  by  the  Executing  Court  and  the  

compromise held to be valid in law.  In appeal against the  

1

order dated 30.8.1979 passed by the Executing Court, the  

learned Single Judge of  the High Court  affirmed the view  

taken  by  the  Executing  Court  and  declared  that  a  

compromise  could  be  recorded  even  in  execution  

proceedings and that the bald allegations suggesting a fraud  

were wholly untenable.  The dismissal of the Letters Patent  

Appeal and the special leave petition against the said orders  

by this Court has placed all these aspects beyond the pale of  

any  further  challenge  or  controversy.  It  follows  that  all  

contentions  relating  to  the  validity  of  the  confirmation  of  

sale in favour of the decree holder and the issue of a sale  

certificate  in  her  favour  which  stand  finally  determined  

against the appellants in terms of the judgments and orders  

of the Executing Court and the High Court in the first round,  

stand concluded & cannot be re-agitated. Reliance upon the  

decisions of this Court cited by Mr. Kapoor, is therefore of no  

assistance to him.    

9. In the second round which started with a fresh set of  

objections  raised  by  the  judgment  debtor,  the  Executing  

1

Court  once  again  examined  the  matter  and  rejected  the  

objections by an order dated 25th September, 1984.  The  

Executing  Court  held  that  the  questions  raised  by  the  

judgment  debtor  stood  answered  by  the  earlier  orders  

passed by the Executing Court and upheld by the High Court  

in appeal. The contention that the compromise between the  

parties  extinguished  the  decree  and  was  a  complete  

adjustment within the meaning of Order XXI Rule 2 was also  

repelled. The Court held that the decree continued to subsist  

till  the  judgment  debtor  delivered  possession  of  the  

premises in terms of the compromise. The court accordingly  

issued  warrants  for  delivery  of  possession  to  the  decree  

holder.  It  is  common ground that  the view taken by the  

Executing Court in the said order has also attained finality as  

no appeal or other proceedings were filed against the same.  

In  the  above  background,  any  effort  to  rekindle  the  

controversy surrounding aspects which stand finally decided  

must necessarily fail.  

1

10. The third round of proceedings it is noteworthy started  

with the objections raised by the judgment debtor leading to  

the  passing  of  an  order  dated  5th October,  1987  by  the  

Executing Court. The Court formulated as many as 14 issues  

which the judgment debtor sought to agitate in opposition to  

the execution of the decree and held that all of them except  

Issue Nos.7 and 9, stood decided by the Executing Court  

against the judgment debtor in terms of its orders dated 30th  

August,  1979  and  25th September,  1984.  The  Executing  

Court said:-

“In  the  light  of  the  circumstances  stated  above,  I  am  of  the  opinion  that  the  contentions  forming  the  subject  matter  of  issue Nos. 1, 2, 3, 4, 5, 6, 8, 10, 11, 12 & 13  have  already  been  gone  into  and  decided  against  the  JD  on  merits.  Orders  dated  30.8.1979  and  25.9.84  of  Sarvshri  B.C.  Rajput and Jagroop Singh learned Sub-Judge,  Ist  Class,  respectively  in  this  behalf  have  become final  and binding on the  JD.   It  is  thus no more open to me to go into these  questions  and  decide  them  afresh.   I  therefore, do not feel it  necessary to dilate  upon the case law cited quo these issues.”

1

11. As  far  as  issues  no.7  and  9  are  concerned,  the  

Executing  Court  decided  the  same  also  in  favour  of  the  

decree  holder  and  held  that  the  application  filed  by  the  

decree holder was within time and maintainable in law. The  

said  order  when  assailed  before  the  High  Court  in  FAO  

No.502 of  1979 was  upheld  and  the  appeal  dismissed  in  

limine by  the  learned  Single  Judge  of  the  High  Court.  

Letters  Patent  Appeal  No.167  of  1989  assailing  the  said  

dismissal also met the same fate. The Division Bench noted  

that the questions sought to be raised in the third round of  

the proceedings had been dealt with and answered against  

the judgment debtor in terms of the earlier orders passed by  

the  Executing  Court  and  the  Appellate  Court  in  appeal.  

There is,  in our opinion,  nothing wrong with that view to  

warrant  interference.  The  High  Court  has  taken  pains  to  

recall the history of the litigation, the issues that were raised  

from time to time and the judgments that determined those  

issues. It was justified in taking the view that the judgment  

debtor had successfully prevented delivery of possession of  

1

the property to the decree holder for such a long time even  

after the sale of the property in her favour which was found  

by all the courts including this Court to be perfectly valid in  

law. The argument that even after the sale was declared to  

be legally valid, the decree holder could not demand delivery  

of  possession,  as  the  decree  stood  fully  adjusted  and  

satisfied was also rightly rejected by the Executing Court, in  

its  order  dated  25.9.1984  against  which  the  judgment  

debtor had sought no redress.

12. That  brings  us  to  the  question  whether  the  Division  

Bench of the High Court committed a mistake in ignoring the  

fact  that the Single  Judge who dismissed the first  appeal  

filed  by the  judgment  debtor  had recorded no reasons in  

support of the order passed by him. It was, according to Mr.  

Kapoor, necessary for the Single Judge to give reasons in  

support of the order made by him howsoever brief the same  

may have been.  The absence of  any reason in  the order  

passed by the Single Judge was, argued the learned counsel,  

sufficient for the Division Bench to set aside the same and  

1

remit the matter back for a fresh disposal in accordance with  

law. In as much as the Division Bench ignored that legal  

deficiency in the order and proceeded to decide the appeal  

on merits, it committed a mistake that ought to be corrected  

by this Court, was the only submission made by Mr. Kapoor  

that merits consideration.

13. The  juristic  basis  underlying  the  requirement  that  

Courts and indeed all such authorities, as exercise the power  

to determine the rights and obligations of individuals must  

give reasons in support of their orders has been examined in  

a  long  line  of  decisions  rendered  by  this  Court.  In  

Hindustan Times Limited v. Union of India & Ors. 1998  

(2) SCC 242 the need to give reasons has been held to arise  

out  of  the need to minimize chances  of  arbitrariness  and  

induce clarity.  In Arun s/o Mahadeorao Damka v. Addl.  

Inspector General of Police & Anr. 1986 (3) SCC 696 the  

recording of reasons in support of the order passed by the  

High  Court  has  been  held  to  inspire  public  confidence  in  

administration of justice, and help the Apex Court to dispose  

1

of appeals filed against such orders. In  Union of India &  

Ors. v.  Jai  Prakash Singh & Anr. 2007 (10) SCC 712,  

reasons were held to be live links between the mind of the  

decision maker and the controversy in question as also the  

decision  or  conclusion  arrived  at.  In  Secretary  and  

Curator, Victoria Memorial Hall v. Howrah Ganatantrik  

Nagrik Samity & Ors. 2010 (3) SCC 732, reasons were  

held  to  be  the  heartbeat  of  every  conclusion,  apart  from  

being an essential feature of the principles of natural justice,  

that  ensure  transparency  and  fairness,  in  the  decision  

making process. In Ram Phal v. State of Haryana & Ors.  

2009 (3) SCC 258, giving of satisfactory reasons was held to  

be a requirement arising out of an ordinary man’s sense of  

justice and a healthy discipline for all  those who exercise  

power  over  others.  In  Director,  Horticulture  Punjab  &  

Ors. v. Jagjivan Parshad 2008 (5) SCC 539, the recording  

of reasons was held to be indicative of application of mind  

specially when the order is amenable to further avenues of  

challenge.

1

14. It  is  in  the  light  of  the  above  pronouncements  

unnecessary  to  say  anything  beyond  what  has  been  so  

eloquently said in support of the need to give reasons for  

orders  made by Courts  and statutory  or  other  authorities  

exercising quasi judicial functions. All that we may mention  

is  that in a system governed by the rule of law, there is  

nothing like absolute or unbridled power exercisable at the  

whims and fancies of the repository of such power. There is  

nothing like a power without any limits or constraints. That  

is so even when a Court or other authority may be vested  

with wide discretionary power, for even discretion has to be  

exercised  only  along  well  recognized  and  sound  juristic  

principles  with  a  view  to  promoting  fairness,  inducing  

transparency and aiding equity.   

15. What  then  are  the  safeguards  against  an  arbitrary  

exercise of power? The first  and the most effective check  

against  any  such  exercise  is  the  well  recognized  legal  

principle that orders can be made only after due and proper  

application  of  mind.  Application  of  mind  brings  

1

reasonableness not only to the exercise of power but to the  

ultimate conclusion also.  Application of mind in turn is best  

demonstrated by disclosure of the mind.  And disclosure is  

best demonstrated by recording reasons in support of the  

order or conclusion.  

16. Recording  of  reasons  in  cases  where  the  order  is  

subject to further appeal is very important from yet another  

angle. An appellate Court or the authority ought to have the  

advantage of examining the reasons that prevailed with the  

Court  or  the  authority  making  the  order.  Conversely,  

absence  of  reasons  in  an  appealable  order  deprives  the  

appellate Court or the authority of that advantage and casts  

an onerous responsibility upon it to examine and determine  

the question on its own.  An appellate Court or authority  

may in a given case decline to undertake any such exercise  

and remit the matter back to the lower Court or authority for  

a  fresh  and  reasoned  order.  That,  however,  is  not  an  

inflexible rule, for an appellate Court may notwithstanding  

the absence of reasons in support of the order under appeal  

2

before it examine the matter on merits and finally decide the  

same at the appellate stage. Whether or not the appellate  

Court  should  remit  the  matter  is  discretionary  with  the  

appellate Court and would largely depend upon the nature of  

the dispute, the nature and the extent of evidence that may  

have to be appreciated, the complexity of the issues that  

arise  for  determination  and  whether  remand  is  going  to  

result in avoidable prolongation of the litigation between the  

parties.  Remands are usually avoided if the appellate Court  

is of the view that it will prolong the litigation.   

17. In the present case the appellate Court appears to have  

decided against remanding the matter to the Single Judge  

on the ground of absence of reasons in the order passed by  

the  latter  because  any  such  remand  would  have  only  

prolonged the agony of the parties.  From a reading of the  

impugned order of the appellate Court it  is  clear that the  

appellate Court was conscious of the fact that the litigation  

had been prolonged for many years.  It, therefore, decided  

to resolve the matter on merits rather than remitting the  

2

same back for a fresh disposal by the learned Single Judge.  

In as much as the appellate Court adopted that approach it  

did not, in our opinion, commit any mistake to warrant our  

interference  under  Article  136  of  the  Constitution.  The  

litigation  between  the  parties  having  continued  for  three  

decades,  the  discretion  vested in  the  appellate  Court  and  

was rightly exercised by it. The submissions made by Mr.  

Kapoor that the appellate Court ought to have remitted the  

matter back to the Single Judge must, therefore, fail and is  

hereby rejected.   

18. In the result this appeal fails and dismissed but in the  

circumstances without any order as to costs.

……………………………J. (MARKANDEY KATJU)

……………………………J. (T.S. THAKUR)

New Delhi September 8, 2010

2