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 25

th

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 25

th

October, 1976 against Hans

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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 17

th

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

16

th

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

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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 30

th

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

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failed and was dismissed on 18

th

November, 1981. A Special

Leave Petition against the said two orders was dismissed by

this Court in limine on 5

th

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 25

th

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

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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 5

th

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 30

th

August, 1979 and 25

th

September, 1984 which orders had attained finality. It also

held that application dated 22

nd

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

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Execution First Appeal which was dismissed by a learned

Single Judge of the High Court on 26

th

September, 1988. A

Letters Patent Appeal preferred against the said order also

failed and was dismissed on 5

th

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.

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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

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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.

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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

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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

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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

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Court once again examined the matter and rejected the

objections by an order dated 25

th

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.

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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 5

th

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 30

th

August, 1979 and 25

th

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.”

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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

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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

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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

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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.

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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

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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

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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

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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

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