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Judgment
Rule. Heard Mr. Patni, learned counsel for the Petitioners/original Decree Holder and Auction Purchaser, and Mr. Lakhotiya, learned counsel for the Respondents. Perused the impugned orders, the record and the judgments relied upon by the learned counsel for the parties.
The Petitioners by this Petition assail the Judgment and Order dated 18th February 2021, passed by the learned District Judge-2, Aurangabad, in Miscellaneous Civil Appeal No.186 of 2019, whereby the Appeal was allowed and the order dated 29th August 2019, passed by the learned 7th Joint Civil Judge, Senior Division, Aurangabad, below Exhibit 102 in Special Darkhast No. 97 of 2008, was quashed and set aside. By the said order, the learned District Judge-2 also cancelled the sale certificate dated 02nd July 2012 (Exhibit 29) and directed the learned Executing Court to start a fresh process for sale from the stage of Order XXI Rule 66 of the Code of Civil Procedure, 1908 (for short, “CPC”).
Similarly, the Objection Petitioner in the said execution proceedings, who has purchased a part of the property bearing CTS No.7933/P, situated at Chouraha, has also preferred a Writ Petition No.8410 of 2018, being dissatisfied with the Judgment and Order dated 14th November 2017 passed by the learned District Judge-2, Aurangabad, whereby the appeal was allowed, and the order dated 05th April 2017 passed by the learned Executing Court, i.e. 6th Jt. Civil Judge, Senior Division, Aurangabad, below Exhibit 33, in Special Darkhast No. 97 of 2008, was set aside.
Both the Writ Petitions were heard together at length. Therefore, it is appropriate to consider all documents relied upon by the learned counsel for the respective parties in both Writ Petitions while determining the disputed question in each Writ Petition.
The parties are hereinafter referred to as per their original status in the execution proceedings.
Succinctly, the facts which arise for the present writ petition are as under:
In the year 2007 (22nd October 2007), original Decree Holder/Petitioner No.1 filed a Special Civil Suit No.423 of 2007 for recovery of money. The suit was decreed on 25th April 2008, and accordingly the decree was passed. On 21st July 2008, the Decree Holder filed an Execution Petition bearing Special Darkhast No.97 of 2008 to recover the decretal amount. On 10th December 2008, the Original Judgment Debtor, deceased Digambar Kisanrao Jadhav, appeared in the Execution Proceedings. On 04th July 2009, the Decree Holder filed an application below Exhibit 13 seeking attachment of the property bearing CTS No. 7933, situated at Chouraha. On 18th February 2010, the Court issued a show cause notice to the Judgment Debtor. On 17th June 2010, the learned Executing Court issued an attachment warrant under Order XXI Rule 54 of the CPC, which was returned unserved. Accordingly, on 04th October 2010, the Decree Holder filed an application to re-issue the attachment warrant. Pursuant to the said order, on 14th October 2010, the warrant was executed, and the bailiff prepared panchanama and submitted his report to the Court.
It further appears from the record that, before the execution of the attachment warrant, by a sale deed dated 12th October 2010, the original Judgment Debtor, i.e. Digambar, sold the middle shop to the extent of his share in CTS No.7933, admeasuring 9.29 sq. mtr. (100 sq. ft.), in favour of the Objection Petitioner, i.e. Mahavir Doshi. The said sale deed was registered on 13th October 2010 vide Registration No. 7032 of 2010.
On 24th January 2011, the Decree Holder had filed an Application under Order XXI Rule 66 of the CPC for settling the terms of proclamation for sale of the property attached under the execution proceedings. Accordingly, on 08th February 2011, the Executing Court passed the order that “Terms are given by the Decree Holder; they are accepted.” The Executing Court issued a proclamation for sale of the property bearing CTS No.7933/P on 24th March 2011 under Order XXI Rule 66 of the CPC on P.F. The Bailiff executed the same on 08th April 2011.
It further reveals that on 15th April 2011, the Decree Holder had filed an application to correct the area of the property bearing CTS No.7933 as 27.75 square meters instead of 156 square meters and prayed for re-issuance of the sale proclamation by correcting the area of the plot/property. The said application was allowed as prayed. However, it does not appear on which date the said application was allowed. No date appeared below the order.
Pursuant to the settlement terms, on 23rd January 2012, the first and second bids were conducted at the property site, and the bailiff submitted the report. The third auction was held in the Court on 10th February 2012, and Auction Purchaser/Petitioner No.2 became the highest bidder for ₹8,85,000/-, deposited ₹3,51,000/-, and was granted time until 22nd February 2012 to deposit the balance amount. On 22nd February 2012, the Auction Purchaser deposited the remaining sale consideration. Accordingly, on 26th April 2012, the learned Executing Court confirmed the auction sale under Order XXI Rule 92 of the CPC and directed the issuance of the sale certificate. Accordingly, on 02nd July 2012, the Court issued the sale certificate in favour of the Auction Purchaser.
On 13th August 2012, the Objection Petitioner, i.e. Mr. Doshi, filed an Application under Order XXI Rule 90 read with Section 47 of the CPC to set aside the order dated 26th April 2012, whereby the sale was made absolute under Order XXI Rule 92 of the CPC, and to cancel the sale certificate dated 02nd July 2012 issued pursuant to the said order. The learned Executing Court, i.e. the 6th Joint Civil Judge, Senior Division, Aurangabad, by order dated 22nd January 2013, set aside the order dated 26th April 2012, whereby the sale was confirmed, and cancelled the sale certificate issued on 02nd July 2012, and directed the refund of the amount deposited by the Auction Purchaser to him.
The Decree Holder and the Auction Purchaser have challenged the order dated 22nd January 2013, passed by the 6th Joint Civil Judge, Senior Division, Aurangabad, below Exhibit 33 in Special Darkhast No.97 of 2008. By Judgment and Order dated 26th October 2016, the learned District Judge, Aurangabad, allowed Miscellaneous Civil Appeal No.108 of 2016 and quashed and set aside the order dated 22nd January 2013, passed by the learned 6th Joint Civil Judge, Senior Division, Aurangabad, below Exhibit 33, and remanded the matter to executing Court with a specific direction to give an opportunity of hearing to both the parties and, after considering all pros and cons, to decide that application afresh within two months.
After the matter was remanded back for fresh consideration, the learned 6th Joint Civil Judge, Senior Division, Aurangabad, on 05th April 2017, passed an order below Exhibit 33, thereby cancelling the sale certificate dated 02nd July 2012 only to the extent of the property sold by the Judgment Debtor to the Objection Petitioner vide Sale Deed dated 13th October 2010. The amount deposited by the Auction Purchaser, to the extent of the area mentioned in the Sale Deed dated 13th October 2010, was directed to be refunded to the Auction Purchaser.
Similarly, the Decree Holder and the Auction Purchaser challenged the order dated 05th April 2017, passed below Exhibit 33 in Special Darkhast No.97 of 2008, before the learned District Judge in Miscellaneous Civil Appeal No.141 of 2017. The learned District Judge-2, Aurangabad, by order dated 14th November 2017, allowed Miscellaneous Civil Appeal No.141 of 2017 and set aside the order dated 05th April 2017, passed by the learned 6th Joint Civil Judge, Senior Division, Aurangabad, below Exhibit 33.
Being aggrieved by the Judgment and Order dated 14th November 2017, passed by the learned District Judge-2 in Miscellaneous Civil Appeal No.141 of 2017, whereby the order dated 05th April 2017, passed below Exhibit 33 in Special Darkhast No.97 of 2008, was set aside, the Objection Petitioner has preferred Writ Petition No. 8410 of 2018.
It is pertinent to note that it does not appear that the Objection Petitioner has challenged the order dated 26th October 2016, passed by the learned District Judge-5, Aurangabad, in Miscellaneous Civil Appeal No.108 of 2016, whereby the order dated 22nd January 2013, passed by the learned 6th Joint Civil Judge, Senior Division, Aurangabad, below Exhibit 33, was quashed and set aside.
During the pendency of the execution proceedings, on 06th November 2012, the original Judgment Debtor, Digamber Jadhav, died.
On 18th March 2017, the legal heirs of the original Judgment Debtor filed an Objection Application (Exhibit 69) under Section 47 read with Section 151 of the CPC for dismissal of the execution proceedings filed in Special Darkhast No.97 of 2008. The learned Judge on 25th April 2017 passed the following order on the said Application:
“ORDER below Exh.69
Read the application and say.
Heard. In view of the order below Exh. 33, the application stands disposed of.”
Thereafter, the legal heirs of the Judgment Debtor filed an application below Exhibit 79 in Special Darkhast No.97 of 2008, seeking permission to deposit the decretal amount with interest and expenses in the Court by cheque. After hearing the parties, the learned 8th Joint Civil Judge, Senior Division, Aurangabad, by order dated 01st October 2018, rejected the said Application Exhibit 79.
Being aggrieved by the order dated 01st October 2018, the legal heirs of the Judgment Debtor preferred Miscellaneous Civil Appeal No.132 of 2019 before the learned District Judge. The learned District Judge-11, Aurangabad, dismissed the appeal by order dated 12th February 2020.
On 10th December 2018, the legal heirs of the original Judgment Debtor filed an Objection Petition (Exhibit 102) under Order XXI Rule 90 of the CPC for setting aside the Auction and for cancellation of the sale certificate in Special Darkhast No.97 of 2008. On 11th January 2019, the Decree Holder filed a reply/say to the Objection Petition. The learned 7th Joint Civil Judge, Senior Division, Aurangabad, by order dated 29th August 2019, rejected the Objection Petition filed below Exhibit 102.
Feeling aggrieved by the said order, the legal heirs of the original Judgment Debtor preferred Miscellaneous Civil Appeal No.186 of 2019 before the learned District Court, Aurangabad, on 21st September 2019.
After hearing the learned counsel for the parties, by Judgment and Order dated 18th February 2021, the learned District Judge-2, Aurangabad, allowed the Miscellaneous Civil Appeal No.186 of 2019, and the order dated 29th August 2019, passed by the learned 7th Joint Civil Judge, Senior Division, Aurangabad, below Exhibit 102 in Special Darkhast No. 97 of 2008, was set aside. Similarly, the sale certificate dated 02nd July 2012 (Exhibit 29) (excluding the property of the objector, Mahavir Doshi) was also cancelled. The learned District Judge remanded the matter to the learned Executing Court and directed it to start fresh sale proceedings from the stage of Order XXI Rule 66 of the CPC.
Feeling aggrieved by the order dated 18th February 2021, passed by the learned District Judge-2, Aurangabad, the Decree Holder and the Auction Purchaser have preferred this Writ Petition.
7. Submissions of the Petitioners :
The thrust of the arguments of Mr. Patni, learned counsel for the Petitioners, was that the sale of the property was made absolute under Order XXI Rule 92 of the CPC by following the procedure laid down under Order XXI Rule 66 of the CPC. No one, including the Judgment Debtor, objected to the proceedings. Therefore, the learned Executing Court, by order dated 26th April 2012, confirmed the sale and issued the sale certificate on 02nd July 2012. Therefore, the Application filed under Order XXI Rule 90 was not tenable, as after issuance of the sale certificate under Order XXI Rule 94, the question of setting aside the sale under Order XXI Rule 90 of the CPC does not arise.
Secondly, he argued that the original Judgment Debtor has pointed out no material irregularity or fraud regarding confirmation of the sale order and issuance of the sale certificate. He submitted that in four contingencies only, i.e. four categories of individuals, can file an application under Order XXI Rule 90 of the CPC, namely: (a) the decree-holder, (b) the purchaser in such sale, (c) any other person entitled to share in a rateable distribution of assets, or (d) any person whose interests are affected by the sale. The Respondents/legal heirs of the original Judgment Debtor filed the first Application below Exhibit 69 under Section 47 read with Section 151 of the CPC on 18th March 2017, and the same was disposed of. The Court also rejected the second Application filed by the Respondents seeking permission to deposit the decretal amount along with interest. Therefore, the third Application filed under Order XXI Rule 90 of the CPC was not tenable. The Respondents purportedly filed the said Application but failed to explain their entitlement to seek cancellation of the said sale certificate.
During the course of arguments, he took me through the various orders passed by the learned Executing Court and the learned Appellate Court. He submitted that the order passed by the learned Executing Court rejecting the Application below Exhibit 102 was just and proper, and that no interference was required in it. However, the learned Appellate Court erred in setting it aside. He drew my attention to paragraph Nos. 12, 13, 14, 20, and 22 of the order dated 29th August 2019 passed by the Executing Court. Similarly, he drew my attention to paragraph Nos. 27, 28, and 29 of the order dated 18th February 2021, passed by the learned District Judge, and submitted that the findings recorded in paragraph No.29 support the Decree Holder. However, the learned District Judge erred in recording in paragraph Nos. 27 and 28 that the Executing Court did not follow the procedure contemplated under Order XXI Rule 54(2) and (3) of the CPC. On the contrary, he submitted that the Judgment Debtor never challenged or disputed the order of attachment of the property at any point. Therefore, the learned Judge ought not to have gone into the procedure prescribed under Order XXI Rule 54 of the CPC. He also drew my attention to paragraph No.33 of the said order and submitted that no one has objected to the valuation given by the Decree Holder and, therefore, as per the second proviso of sub-clause (2) of Order XXI Rule 66 of the CPC, the Court is not required to enter in the proclamation of sale its own estimate of the value of the property. Still, the Court may proceed on the estimate given by either of the parties. Therefore, the observations in paragraph No.33 contradict the mandate of the said proviso, as the Decree Holder provided the Court with the correct valuation.
Apart from that, no material was produced on record demonstrating the valuation of the property, nor did the Judgment Debtor enter into the witness box, except that the sale deed executed in favour of the Objection Petitioner was produced on record. Therefore, he urged that in R. P. A. Valliammal Vs. R. Palanichami Nadar and Others1, the Hon’ble Supreme Court has considered the scope of Section 47, Order XXI Rule 90(3) and 93 of the CPC and held that the objection can be made only once and not repeatedly. Once the original owner's title is negatived and made final, it cannot be raised after it has been lost and become final. Therefore, he urged that the learned Appellate Court's finding is contrary to settled provisions of law and the law laid down by the Hon’ble Supreme Court and, as such, cannot be sustained in the eyes of law.
Alternatively, he vehemently argued that as per Article 127 of the Limitation Act, the Application below Exhibit 102 has to be made within Sixty days from the date of the sale; however, it was filed beyond the limitation and, therefore, the Application is not tenable in the eyes of law. Section 5 of the Limitation Act doesn’t apply to execution proceedings filed under Order XXI, as it is excluded.
He drew my attention to paragraph No.29 of the order dated 18th February 2021, passed by the learned Appellate Court, and submitted that, in view of the law laid down by this Court in Shankar Ramkrishna Dandekar Vs. Daga Tanaji Mali2, if the Judgment Debtor, despite having been duly served notice under Order XXI Rule 66 of the CPC, failed to appear and raise any objection, having thus the Judgment Debtor thereby allowed the Court to make the order it passed; therefore, the Judgment Debtor cannot now be permitted to assail the order passed by the Court and said Application/objection made by the Respondent is hit by the principles of constructive res judicata.
He placed reliance on the judgment of the Hon’ble Supreme Court in G. R. Selvaraj (Dead), through LRs. Vs. K. J. Prakash Kumar and Others3 and drew my attention to paragraph No.17 of the said judgment and submitted that “even in the context of a material irregularity under Order XXI Rule 66(2)(a) of the CPC, if the Judgment Debtor had been put on notice by the Executing Court but had acquiesced, by taking no action before the date of the sale, he would be precluded from assailing its legality or correctness thereafter” and, in the case in hand, the facts are identical and, therefore, the law laid down by the Hon’ble Supreme Court applies to the case at hand.
He also placed reliance on the judgment of the Hon’ble Supreme Court in Danesh Singh and Others Vs. Har Pyari (Dead), Thr. Lrs. and Others4 and drew my attention to paragraph Nos. 45, 71 to 74, 78, 84, 85, 89, 94, 96 and 256 and submitted that the Judgment Debtor has to deposit the decretal amount in the Court within sixty days from the date of sale. If he fails to deposit the same, then he is not entitled to make any Application thereafter. If the Judgment Debtor applies under Rule 90 for setting aside the sale, then the Application under Rule 89 is not tenable. Therefore, he argued that the Court cannot hear both Applications filed by the Judgment Debtor simultaneously.
He further canvassed that the order of the learned Executing Court setting aside the sale certificate dated 02nd July 2012 below Exhibit 102 is not tenable, as earlier Applications were rejected. Hence, he urged that the Writ Petition be allowed.
To buttress his submissions, he has placed reliance on the following judgments:
Mangilal Narsingdas Gattani Vs. Shaligram Ukarda Payghan5.
ii) ICICI Ltd. Vs. HICO Products Ltd.6
iii) Kadiyala Rama Rao Vs. Gutala Kahna Rao (Dead) by LRs and Others7.
iv) Saheb Khan Vs. Mohd. Yousufuddin and Others8.
R. P. A. Valliammal Vs. R. Palanichami Nadar and Others (supra).
vi) Shankar Ramkrishna Dandekar Vs. Daga Tanaji Mali (supra).
vii) G. R. Selvaraj (supra).
viii) Barkat Ali and Another Vs. Badri Narain (D) by LRs.9
ix) Danesh Singh (supra).
Jagan Singh & Company Vs. Ludhiana Improvement Trust10
xi) Chilamkurti Bala Subrahmanyam Vs. Samanthapurdi Vijaya Lakshmi and another11
xii) Hirabai Vs. Hanumanth Krishnaji Bhide and Others12.
Submissions on behalf of the Respondents :
Per contra, Mr. Lakhotiya, learned counsel appearing for the Respondents, strenuously opposed the Petition, contending that the Petitioners failed to point out any perversity in the impugned Judgment and Order warranting interference in the Writ Jurisdiction. He further submitted that the Petitioners have challenged the impugned Judgment and Order on four grounds, i.e. (i) maintainability of the Miscellaneous Civil Application, (ii) the application was barred by limitation, (iii) the application was hit by the principle of res judicata, and (iv) the Application doesn’t constitute the ingredients of Order XXI Rule 90 of the CPC. He submitted that, under Order XLIII Rule 1(j) of the CPC, the Miscellaneous Civil Appeal is maintainable against the impugned order. Secondly, he submitted that the Petitioners’ contention that the Application is barred by the principle of res judicata is not tenable, as the Application below Exhibit 69 was not decided on merits and was disposed of in view of the order passed below Exhibit 33. Similarly, the second Application filed below Exhibit 79 under Order XXI Rule 89 of the CPC was confined only to seeking permission to deposit the decretal amount, and the same was rejected. However, the issue about the legality of the Auction Sale and material irregularity contemplated under Order XXI Rule 90 of the CPC neither arose for consideration nor was adjudicated upon in the earlier Applications while disposing of the earlier Applications and, therefore, the question of the bar of the principles of res judicata to file the Application under Order XXI Rule 90 doesn’t arise.
On the point of material irregularity, while conducting the Auction Sale, he submitted that the attachment order doesn’t prescribe a detailed description of the property in question, which is not shown in the schedule of the attachment of the property. The panchnama about the execution of the attachment warrant under Order XXI Rule 54 indicates an incorrect description of the property attached under the warrant. The attachment warrant doesn’t state that the building was two-storied. After correcting the area of the property, no fresh sale proclamation was issued; therefore, he argued that the learned Executing Court did not follow proper procedure while attaching the property in question. Therefore, the material irregularity occurred. He further propounded that the Decree Holder incorrectly valued the property. On 15th April 2011, the Decree Holder applied to correct the area of the property; however, before that, on 24th March 2011, the bailiff affixed the public auction notice under Order XXI Rule 64 of the CPC. That means in the public notice, the description of the property or area of the property was wrongly shown. Therefore, it appears that a grave irregularity occurred while executing the said warrant.
On the point of valuation of the property, he drew my attention to the valuation certificate produced by the Decree Holder before the Executing Court. The Sub-Registrar issued the said Valuation Certificate, valued the open space admeasuring 27.75 square meters, and determined the valuation accordingly. Therefore, he submitted that the Valuation Certificate produced by the Decree Holder is bogus, forged, and fabricated, as the property in question is a two-storied building. Still, the Valuation Certificate produced on record indicates the valuation of the open space. Therefore, he urged that the Decree Holder produced a forged, bogus, and fabricated Valuation Certificate on record, and the learned Executing Court, without satisfying itself, believed the same and passed the order. The Executing Court, without considering the sale deed of the Objection Petitioner produced on record, has erred in passing the order. Therefore, he submitted that the Respondents have rightly moved an Application under Order XXI Rule 90 of the CPC to quash and set aside the said order and the sale certificate.
On the point of limitation, he argued that the Application under Order XXI Rule 90 of the CPC was filed at the stage when the Auction Sale itself had already been set aside by the learned District Judge-2, and the legality of the same continued to remain sub judice before the learned Appellate Court as well as this Court. Therefore, in view of the dictum laid down by the Hon’ble Supreme Court in U. Nilan Vs. Kannayyan (dead) through LRs.13, the Auction Sale cannot be treated as having attained finality until all proceedings challenging the sale are finally concluded. Therefore, he urged that the Respondents' application was well within limitation. Alternatively, he submitted that the legal representatives of the Judgment Debtor were brought on record on 23rd February 2017 and, for the first time, they appeared in the Court on 02nd March 2017. Thereafter, they objected within a reasonable period after their appearance. Therefore, the Application cannot be said to be barred by the law of limitation. Without prejudice to the above, he contended that as per Section 17 of the Limitation Act, 1963, the limitation period can be postponed in cases where the Applicant could not have discovered the relevant facts owing to fraud, concealment or mistake and, therefore, he urged for dismissal of the petition with compensatory costs of ₹10,000/-.
To buttress his submissions, he has relied on the following judgments:
U. Nilan (supra)
Sai Enterprises Vs. Bhimreddy Laxmaiah and Another14
Ambati Narasayya Vs. M. Subba Rao and Another15
Sanjay Vs. Anil s/o Shankarsa Pawar and Others16
M/s. Mahakal Automobiles and Another Vs. Kisan Swaroop Sharma17
Putti Kondala Rao and others Vs. Vallemanchili Sitarattamma & Another18
Laxmi Devi Vs. Mukund Kanwar and Others19
Jaikisandas Balchand Pamnaiii and another V. Municipal Corporation of Greater Bombay and others.20
Mr. Gabriel Peter D’Souza S/o Estainslau D’Souza Vs. Mrs. Cirila Rosa Maria Pinto21
POINTS THAT ARISE FOR CONSIDERATION :
Having heard the rival contentions of the learned counsel for the parties and having gone through the impugned Judgment and Orders in this Writ Petition and in Writ Petition No.8410 of 2018, arising out of the same execution proceedings, and the judgments relied upon by the learned counsel for the parties, the following points arise for consideration:
Whether the learned Executing Court has followed the mandate laid down under Order XXI Rule 54, 64 and 66, in its proper perspective, while holding the sale of the property in question as absolute under Rule 92 of the CPC?
ii) Whether the objection filed by the Respondents under Order XXI Rule 90 of the CPC for setting aside the Auction Sale and cancellation of the Sale Certificate is barred by limitation?
iii) Whether the impugned Judgments and Orders require any interference at the hands of this Court in Writ Jurisdiction?
iv) What Order ?
ANALYSIS
Point No. (i)
While determining the controversy raised by the respective parties, it would be appropriate and convenient to note the provisions of Order XXI Rules 54, 64, 66 and 90 of the CPC, which read as under:
“[Bombay].- In Order XXI, for rule 54 and its marginal note, substitute the following as rule 54 and the marginal note:-
54.(1) Attachment of immovable property – Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge; such order shall take effect, where there is no consideration for such transfer or charge from the date of such order, and where there is consideration for such transfer or charge, from the date when such order came to the knowledge of the person to whom or in whose favour the property was transferred or charged.
(1-A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.
(2)Copies of the order shall also be forwarded to the Collector with a request that appropriate entries showing the attachment levied on the property may be caused to be made in the revenue records, city survey records, or village panchayat records as may be required in the particular case.
(3)The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate, and also, where the property is situate within cantonment limits, in the office of the Local Cantonment Board and the Military Estates Officer concerned and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.
64.Power to order property attached to be sold and proceeds to be paid to person entitled.—Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
66.Proclamation of sales by public auction.—(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible—
(a)the property to be sold 1[or, where a part of the property would be sufficient to satisfy the decree, such part];
(b)the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government
(c)any incumbrance to which the property is liable;
(d)the amount for the recovery of which the sale is ordered; and
(e)every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:
[Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:
Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both of the Parties.
(3)Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.
(4)For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect of any such matters and require him to produce any document in his possession or power relating thereto.
90. Application to set aside sale on ground of irregularity or fraud.—
(1)Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.
(2)No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
(3)No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.”
Rule 54 (1-A) prescribes that the order shall require the Judgment Debtor to attend the Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of the sale. Sub-clause (2) of Rule 54 indicates that copies of the order shall be forwarded to the Collector with a request that appropriate entries showing the attachment levied on the property may be caused to be made in the city survey records. As per clause (3), the order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property.
A plain reading of Rule 90 of the CPC reveals that, in the matter of setting aside the sale of immovable property, three factors emerge and which ought to be taken note of in the matter of setting aside the sale of an immovable property, viz :
material irregularity and fraud in publishing or conducting the sale;
the court dealing with such an application is satisfied that the applicant has sustained substantial injury by reason of such an irregularity or fraud; and
no application would be entertained on a ground which the applicant could have taken on or before the date of drawing up of the proclamation of sale.
The aforesaid rule also contemplates that an application can be made under Rule 90 by four categories of individuals – (a) the decree-holder, (b) the purchaser in such sale, (c) any other person entitled to share in a rateable distribution of assets, or (d) any person whose interests are affected by the sale.”
To ascertain whether the Executing Court has followed the procedure as laid down under Order XXI Rule 54 of the CPC, it is necessary to appreciate the material on record.
It is worth noting that the Petitioners, though they mentioned the facts in the synopsis, skillfully avoided producing the order passed and the procedure followed by the Executing Court under Order XXI Rule 54 of the CPC, and only produced the documents for settling the terms of the sale under Order XXI Rule 66 of the CPC and the proclamation onwards. The Petitioners deliberately failed to produce a copy of the application for attachment of the Property CTS No.7933 (Exh.13) and the order passed thereon and execution of the attachment warrant on record; however, the Respondents produced the same along with the Affidavit-in-Reply, and the Objection Petitioner produced it in Writ Petition No.8410 of 2018. Bare perusal of the same, it is apparent that the Decree Holder/Petitioner No.1 had moved an Application (Exhibit 13) before the Executing Court in Special Darkhast No. 97 of 2008 contending that no movables were found with the Judgment Debtor so as to satisfy the decree; therefore, he urged for issuance of a warrant of attachment of the immovable property bearing CTS No.7933 admeasuring 156 sq.mtr. at Chouraha and that it be put to auction to satisfy the decree. On the said Application, the learned Executing Court, on 17th June 2010, passed the following order:
“Order.”
Issue attachment warrant under Order XXI Rule 54 CPC on PF.
It is pertinent to note that the order does not reflect that the learned Executing Court passed an order prohibiting the Judgment Debtor from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge, as mandated in Rule 54(1) of the CPC, but simpliciter passed the order for issuance of an attachment warrant under Order XXI Rule 54 of the CPC. When undisputedly the property in question was not the subject matter in the Suit nor the part of the Decree. Similarly, the order does not reflect that it was issued under sub-clause (1-A) of Rule 54 of the CPC, requiring the Judgment Debtor to attend the Court on a specified date to take notice of the date to be fixed for settling the terms of proclamation of sale. The above order clearly shows that the learned executing court did not follow the mandate of Rule 54(1) and (1-A) of the CPC in its proper perspective.
Pursuant to the said order, the attachment warrant was issued on 09th August 2010. The warrant was returned unserved on 11th August 2010, as no one on behalf of the Decree Holder was present to identify the property. For ease of reference, a scanned copy of the warrant of attachment is reproduced hereinbelow along with a typed copy of the same. (Exhibit 15)
नीरज. कोमल चम्पावत व गिरी रमण कले.
अ. 10
It is also ordered that you should attend Court of the day of 11-8-10 to this take notice of the date fixed for setting the terms of the proclamation sale.
Given under my hand and the seal of the act this...9... day of ..August..2010
:- SCHEDULE :-
Property CTS NO 7933 Situated at Chouhary Aurcmaabad.
(R.B. Aarawal) (A. A. A. A. A. A.) 3rd Civil Judge Sr. Divn Aurcmaabad.
निर्मित 1- एक-एक-आदेश के लिए भी उपस्थित है। इसके लिए सन् 9/8/10 को मैं अपने आदेश बताता हूँ। मैं किसी भी आदेश के साथ-साथ पहले के लिए मैं अपनी शर्तों को जानकारी दे रहा हूँ। मैं उनके आदेश के साथ-साथ
ND 18-11-10
3rd SD
समय: 10:00 AM अ. 10
Asstt. Supdt. (A.) Civil Judge (S. D.) Court Aurcmaabad
अ. 10
1)14/10/2010.
12/10/10 14-10-10
2)Saadan Chowhan 17/10/2010
“ATTACHMENT IN EXECUTION (Prohibitory order where the property consists of immovable property under Order 21
Rule 54 of C.P.C.)
IN THE COURT OF CIVIL JUDGE 3rd Jt. SD, Aurangabad DIST. AURANGABAD.
Spl. R.D. No. 97/ 2008 Exh. No.
Rajendrasingh Vs. Digambar
D. H. :- Rajendrasingh Thakur R/o. Chouraha
:- V e r s u s :-
J.D. :- Digambar Kisanrao Jadhav, Age : 49, Occu : Business R/o. Chouraha, Aurangabad.
Whereas you failed to satisfy a decree passed against you on 25-4-08 in Spl. Civil Suit No. 423/07 in favour of the decree holder for Rs.2,27,525=00. It is ordered that you, the said Judgment Debtor, are hereby prohibited and restrained, until the further order of this Court, from transferring or changing the property specified in the Schedule hereunto annexed by sale, gift, or otherwise and that all persons and they are hereby prohibited from receiving the same by purchase, gift, or otherwise and the next date is given.
It is also ordered that you should attend the Court on the day of 11-08-10 to take notice of the date fixed for settling the terms of the proclamation of sale.
Given under my hand and the seal. of the – this 9th day of August 2010
:- S C H E D U L E :-
Property CTS No. 7933
Situated at Chouhara Aurangabad.
(R. B. Agrawal) 3rd Jt. Civil Judge, Sr. Divn, Aurangabad
fjiksVZ & ,l- ,l- tk/ko csyhQ vkSjaxkckn
eh izfrKsoj lsosr fuosnu djrks dh] eyk fn-09@08@2010 jksth tIrh okWjaV ctko.kh dkeh feGkyh- eh okWjaVph ctko.kh djkoh ijarq /kudks rQsZ fu”kkunsgh dks.khgh u vkY;kus lnj okWjaV u ctkoY;k ijr lsosr fjiksVZ lknj-”
Therefore, on 04th October 2010, the Decree Holder filed an application for re-issuance of the warrant of attachment of the property. On the said application, the Court passed an order to “Reissue A/W.” Pursuant to the said order, as per the bailiff’s report, he visited the alleged house bearing CTS No.7933 in the presence of the panchas and prepared the panchnama dated 14th October 2010 regarding execution of the warrant on the property in question.
A bare perusal of the schedule of the attachment of the property denotes that the property bearing CTS No.7933 situated at Chouraha was in question; however, the said schedule does not describe the property in detail. The schedule does not mention either the four boundaries or the area of the said property, and it vaguely describes the property as CTS No.7933.
For ease of reference, a scanned copy of the Bailiff’s report dated 16th November 2010 is reproduced hereinbelow along with a typed copy of the same.
“Spe. R. D. No. 97/08, jktsanzflax v/s. fnxacj
fjiksVZ & ,Q-lh- dk>h] csyhQ dksVZ vkSjaxkckn
eh izfrKsoj lsosr fuosnu djrks dh] eyk fn- 14&10&2010 jksth tk;eksD;koj tkoqu /kudks ;kaps fu’kk.knsghus o iapkle{k eukbZ vkns’k rkehy dsys vkgs o rlk iapkuh tk;eksD;koj dsysyk iapukek lkscr tksMyk vkgs- lcc es- lkgsckuk lsosr fjiksVZ lknj-”
The above report indicates that on 14th October 2010, according to the Bailiff, he went to the property in question, the Decree Holder identified the said property, and, in the presence of the panchas, he executed the order of attachment in respect of the property in question and annexed the panchnama thereto. In the report, he nowhere mentioned that the Judgment Debtor was present on the spot but only stated that the Decree Holder was present and, in the presence of the panchas, he executed the warrant.
The panchanama prepared by the bailiff constitutes a crucial document to determine the controversy involved in the matter. It is therefore imperative to reproduce hereinbelow a scanned copy of the panchanama dated 14th October 2010, along with a typed copy.
निवारण विभागी न्यायाधीश साकेत क.नवर् यांये सेनेरी
वृत्त. 12. No. 97/08
सकते 2. आदेशानुसार
॥ १ ॥
सकते 2. दिनांक
पृ. 1) रात्रि वि. प्रमाणा यांये 19.29 वर्ष, असाइनेट नॉवनी ता. पराना अधिकारिक
2)सरकारनि. वि. कासुमि. प्रमाणा नं. 59 वर्ष, व्यापार ता. पराना बाजार नॉव. ता. वि. नॉव.
प्रमाण
आधी न्यायिक सत्ता कारणे वृत्तपत्र, कारणे प्रमाणात करव. देणे की आय. दि. 14.10.10 रोजी निवारण कोणी नॉव. आदेशानुसार मासिक नॉव. योजना घेणे काणे यांच्या योजनाकाराने आधी वृत्तपत्र, एकमिन. कारणे यांये कारणे यांये आयात्या नायकीन निवारण नॉवनी करव. केल नॉवनी करव. कारणे यांये आयात्या नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन नायकीन न कारणे यांये आयात्या नायकीन नायकीन नायकीन न
NDR DIVISION
identified the property
A B
ममकी श्याम रघुवीर रघुवीर रघुवीर ममकी श्याम रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर रघुवीर
पुष्पकला रचना
1)14/10/2010
देखा 14-10-2010
T.C. Ad. Co. Jan
2)Saedars Chawelon 14-10-2010
14-10-2010
Compared by
Arvind Chakraborty Chief Court of Aurangabad
Jr
“fo|eku fnok.kh U;k;kf/k’k lkgsc o- Lrj ;kaps lsos’kh Spe. R. D. No. 97/08 /kudks % jktsanzflax v/s _udks % fnxacj
iap %& 1½ jfoanz fi- izdk’k pkscs] o; - 29 o”ksZ] vdkÅVaV ukSdjh] jk- pkSjkgk] vkSjaxkckn
2½ ljnkjflag fi- ckcqflag pOgk.k] o; - 59 o”ksZ] O;kikj] jk- ljkQk cktkj] ukansM] rk- ft- ukansM.
iapukek
vkEgh [kkyhy lg;k dj.kkjs iapkyksd dkj.ks iapkukek d:u nsrks dh] vkt fn- 14-10-10 jksth fo|eku dksVkZps csyhQ vkSjaxkckn ef/ky eksgYys pkSjkgk ;sFks vkys R;kaP;k cksyko.;ko:u vkEgh iapyksd ,df=r vkyks R;kauh vkEgk iapkuk vkiY;k toGhy fo|eku dksVkZps ojhy dsl uacjps eukbZ vkns’k okpwu letkowu nk[koys o leksj mHks vlysys ble nk[kowu gs fu’kk.k nsgh dk>h gtj vkgs vls lkafxrys o:u vkEgh /kudks ;kauk R;kaps uko fopkjys vlrk R;kauh vkiys uko jktsanzflax jaftrflagk Bkdqj vkgs vls lkaxhrys okWjaVoj ikfgys vlrk uko cjkscj fnlwu ;rs- vkEgh iapkuh R;kauk _udks ;kaPP;k fu’kk.knsghus vkEgh _.kdks ;kaps ?kjkleksj gtj vkyks- eukbZ vkns’k vlysys ?kj Ø- CTS No. 7933 ;kph vkEgh iapkuh [kk=h dsyh vlrk _.kdks jkgr vlysys ?kj gsp CTS No. 7933 vlY;kps [kk=h >kY;koj ?kjkph ikg.kh dsyh- lnj ?kj gs ,d etyh vlwu R;kph prq- flek [kkyh izek.ks vkgs- iqosZl & xoGh ;kps] nf{k.ksl & [kksMds ;kaps ?kj] mRrjsl & ljdkjh jLrk] if’pesl & ljdkjh jLrk ;s.ks izek.ks vkgs- fo|eku dksVkZP;k vkns’k izek.ks lnj eukbZ vkns’kkph ,d izr CTS No. 7933 P;k _.kdks jkgr vlysys n’kZuhnkoj ,dfoyh o rsFks gtj vlysY;k o vkEgk iapkle{k csyhQ lkgsckauh tkfgj dsyh dh lnj ?kj ek- U;k;ky;kps vkns’kkUo;s dks.khgh blekus [kjsnh] c{khl fdaok ;ksX; fjrhus rcnhy d: u;s vls tkfgj dsys o vkns’kkph ,d izr pkSjkgk ;sFkhy x.kirh eafnjkP;k n’kZuh fHkarhoj mdfoyh- dfjrk lnj iapkukek vkEgh iapkuh tk;eksD;koj clwu d:u fnyk tk [kjk o cjkscj vlwu vkEgh okpwu [kkyh lg;k dsY;k vkgs- ”
The above-referred panchanama reveals that one person identified the property, and, upon enquiry, the Decree Holder stated his name, which was verified from the warrant. The Bailiff, along with the panchas, asked the Decree Holder to identify the Judgment Debtor’s house; accordingly, they reached the Judgment Debtor’s house bearing CTS No.7933. They then mentioned the description of the property as under:
“The said house is a single-storied house, and the boundary of the said house was mentioned as under: East : Gawali, South : House of the Khodke, North : Public Road and West : Public Road.” and accordingly, he had affixed the order of the Court on the said house in the presence of the panchas.”
Perused the sale certificate issued by the Executing Court. For ease of reference, a scanned copy of the schedule of the property is reproduced hereinbelow along with a typed copy of the same.
“SCHEDULE OF THE PROPERTY : Property bearing C.T.S. No.7933/P admeasuring 27.75 sq. Meter
situated at Chauraha, Aurangabad, which is in triangular shape, having a two-storey building consisting of 3 shops on the ground floor and having the following boundaries : To the East : C.T. S. No.7934 To the West : Main Road. To the South : Main Road To the North : Galli
Minute perusal of the schedule of the property in question categorically indicates that the subject property is admeasuring 27.75 sq. meters, having a two-storied building consisting of three shops on the ground floor and having the boundaries as referred to above. Likewise, the certificate shows the south boundary as the main road; however, the panchnama mentions the house of Khodke. Towards the north, the certificate mentions a galli; however, the panchnama mentions a public road.
Thus, it is evident that there is a material discrepancy in the description of the property, i.e., the property was one-storied or two-storied. Similarly, there appears to be a discrepancy in two boundaries, i.e., the southern and northern boundaries, which creates doubt about the execution of the warrant by the bailiffs in the presence of the panchas with respect to the property in question. Moreover, a discrepancy appears regarding the Judgment Debtor's presence on the spot, as the report nowhere states that the Judgment Debtor was present. However, the panchanama is vague and ambiguous as to the Judgment Debtor's presence on the spot.
Now, turning to the Application (Exhibit 13) filed by the Decree Holder before the Executing Court. For ease of reference, a scanned copy of the relevant portion is reproduced hereinbelow along with a typed copy of the same.
“--In the above matter, the Hon’ble Court was pleased to issue a warrant for attachment of the movable property of the judgment debtor; however, it appears that the concerned bailiff did not find any movables so as to satisfy the decree. Hence, the warrant was returned by the concerned bailiff without its execution. Under such circumstances, the judgment debtor is having immovable property bearing CTS No. 7933 adm. 156 sq. Meter situated at Chouhara, Aurangabad. The decree holder is producing the property card of the said property. Accordingly, the said property of the J.D. be ordered to be attached, put to auction, and the sale proceeds appropriated towards satisfaction of the decree.
HENCE IT IS PRAYED THAT :
Property C.T.S. No. 7933 situated at Chouhara Aurangabad may please be attached, and it be put to auction, and the sale proceeds be ordered to be paid to the D.H. towards the satisfaction of the decree & oblige.”
Bare perusal of the Application reveals that the Decree Holder has categorically mentioned that the immovable property bearing C.T.S. No. 7933, admeasuring 156 sq. meters, situated at Chouraha, be attached. Pursuant to the said Application, the bailiff attached the property in question on 14th October 2010. It also appears that thereafter, the Decree Holder filed an application under Order XXI Rule 66 of the CPC (Exhibit 17) to settle the terms of the proclamation for sale of the property attached by the Court in the execution proceedings.
“HENCE IT IS PRAYED THAT :
A) --
B) The property bearing C.T.S. No.7933/p admeasuring 156 sq. Meter situated at Chouraha, Aurangabad may please be ordered to be put to auction on settling the terms thereof for satisfaction of the decree and oblige.
O
Terms are given by D.H. They are accepted. Issue proclamation u/o 21 R 66 CPC on PF on Property being CTS No.7933/P”
A plain reading of the order indicates that the learned Executing Court, on 08th February 2011, issued a proclamation under Order XXI Rule 66 of the CPC on the property being CTS No. 7933/P.
It also appears that during the pendency of the Application (Exhibit 17), on 01st February 2011, the Decree Holder filed an application seeking permission to produce the valuation report of the property in question. On the same date, permission to produce it was granted. It appears that the Decree Holder produced the valuation certificate issued by the Sub Registrar, Class-II (referred to by the Decree Holder as “Stamp Registrar”), Aurangabad, dated 29th January 2011 (Original). For ease of reference, a scanned copy of the valuation certificate is reproduced hereinbelow along with a typed copy of the same.
“vtZ Ø- 261@2011 fnukad 29@1@2011
‘kgjh @ xzkfe.k eqY;kad.k i=d
nLr,sot Øekad i{kdkjkps uko % fnxacj fdlujko tk/ko rQsZ Bkdqj vkj- vkj-nLr,sotkpk izdkj % eqY;kadu 25&vfHkgLrkarj.ki= feGdrkaps o.kZu % fl-l-u- 79+33 pkSjkgk vkSjaxkckn >ksu u-1-236 miyC/k nj % [kqyh % 14500@& fu;klh % & dk;kZy; & nqdku & fnukad % 29&1&2011 lnj eqY;kadu [kkyhy izek.ks fnysY;k ekfgrhP;k vk/kkjs dj.;kr vkys vkgs-
ftYákps uko vkSjaxkckn foHkkxkps uko EkSts vkSjaxkckn&7 ¼egkuxj ikfydk vkSjaxkckn½ mi&foHkxkkps uko vkSjaxkckn Ø- 5 uxjikfydspk izdkj vkSjaxkckn cka/kdkekps eqY; & bekjrhpk izdkj & Lora= Hkq[kaMkojhy [kqyh tkxk 14500@& izrh pkS- eh ,dq.k {ks= ¼pkS-eh-½ 27-75 pkS-eh- cka/kdkekps {ks= ¼pkS-eh-½ && eqY;kad.kkps o”kZ 2011 etyk Ø- && cktkj eqY; ¼[kqyh tkxk½ 14500 izrh pkS-eh- cka/kdkekpk izdkj && ,dq.k etys && ,dq.k cktkjeqY; 402]375@& eqY;kadu eqY; & pkj yk[k nksu gtkj rhu’ks iapkgRrj QDr
lg nq¸;e fuca/kd oxZ&2
vkSjaxkckn Ø-5
lg nq¸;e fuca/kd oxZ&2
vkSjaxkckn”
It is revealed from the above certificate that the same was issued by the Sub-Registrar No. 5, Aurangabad, on 29th January 2011. The said certificate mentions CTS No. 7933. The nature of the property is mentioned as ‘open space to the extent of 27.75 sq. mtr., and the rate of the property as open space is shown as ₹14,500/- per sq. mtr., and the valuation of the open space is mentioned as ₹ 4,02,375/-. It is pertinent to note that the said valuation was not issued for the two-storied building consisting of three shops. It does not reflect that the concerned Authority determined the valuation of the commercial property and the two-storied building. It also appears that the learned Executing Court, relying on the said valuation certificate, passed the order dated 08th February 2011 for issuance of a proclamation under Order XXI Rule 66 of the CPC.
Pursuant to the said order, on 24th March 2011, a proclamation of the sale of the property in question was issued under Order XXI Rule 66 of the CPC for a public auction on 01st April 2011. The said proclamation notice states that the auction was to be held on 02nd April 2011 at 11:00 a.m. at CTS No. 7933/P. The notice also described the schedule property as CTS No. 7933/P, admeasuring 156 sq. mtr., situated at Chouraha. The schedule did not describe the property or its boundaries. It also appears that the bailiff affixed the notice to the property in question on 30th March 2011 and submitted a report to the Court.
Thereafter, on 15th April 2011, the Decree Holder filed an application to correct the area of the plot as 27.75 sq. mtr. and to re-issue the sale proclamation. The said application was allowed as prayed; however, the order does not mention a date. I would like to reproduce the prayer clause (a) of the said application.
“A) The sale proclamation may please be re-issued after making necessary correction in the area of the plot, i.e. instead of 156 sq. mtr., it be mentioned as 27.75 sq. mtr. The rest of the conditions of the sale proclamation will remain as it is.”
The above prayer reveals that the area of the plot was mentioned instead of the area of the property/building, as the same is a two-storied building and not an open space/plot.
It is pertinent to note that as per the attachment warrant issued under Order XXI Rule 54, the property admeasuring 156 square meters was attached. In fact, the Judgment Debtor possesses only 27.75 square meters of the property. The execution of the attachment warrant, therefore, also raises doubts about its validity.
Apart from that, subsequently, the area of the property appears to have been corrected in the schedule of the property; however, the said correction does not bear the signature of the learned Judge of the Executing Court, and the record does not disclose when such correction was made or whether the fresh notice was issued as per the corrected schedule. Similarly, the bailiff’s report states that the proclamation was affixed to the property in question on 30th March 2011, i.e., before the area of the property in question was corrected in the schedule. No subsequent notice of proclamation of sale was produced on record to show that, after correcting the area of the property, it was issued or affixed to the property. The Bailiff’s report indicates that on 30th March 2011, i.e., before correction of the notice, it was affixed to the property. No record indicates that it was affixed after correction of the proclamation notice. This fact also raises doubt as to whether the procedure was followed and whether the attachment warrant was executed and the public auction notice affixed to the property in question. The Bailiff submitted a report, along with the panchanama, to the Court, stating that on 21st January 2012 he affixed the public auction notice to the property in question, with the auction date mentioned as 23rd January 2012. Thereafter, as per the Bailiff’s report dated 27th January 2012, it is evident that on 23rd January 2012, in the presence of the Decree Holder, he identified the property in question and conducted the auction twice, but nobody was ready to participate in the said auction. Therefore, on 27th January 2012 at 11:00 a.m., the Court held the third auction proceedings.
Thereafter, the learned Executing Court, by order dated 26th April 2012, in the execution proceedings, passed the order and held that the “sale is made absolute under Order XXI Rule 92 of the CPC” and issued a sale certificate under Order XXI Rule 94 of the CPC in the name of the Auction Purchaser. Pursuant to the said order, on 02nd July 2012, the Court issued a certificate of sale in the name of the Auction Purchaser.
UPSHOT OF THE ABOVE DISCUSSION :-
In the light of the above discussion, it is evident that the learned Executing Court, while passing the order under Order XXI Rule 54 and Rule 66, has not followed the mandate laid down in those Rules. It does not appear that, as per sub-rule (1-A) of Rule 54, the notice was served on the Judgment Debtor to attend the Court on a specified date. Similarly, the notice was not forwarded to the Collector with a request to make the appropriate entries showing the attachment of the property in the city survey record, as this was mandatory for the Executing Court. This non-compliance reveals that the learned Executing Court failed to follow the mandate laid down in Rule 54 of the CPC.
Likewise, a discrepancy appears about the identification of the property by the Bailiff while executing the attachment warrant as well as while affixing the proclamation notice. No specific material has been produced on record to indicate that the Bailiff had executed the attachment warrant on the property in question. On the contrary, it creates doubt as to whether the Bailiff executed the said warrant on the property in question.
Moreover, it appears that the description of the property mentioned in the panchnama and sale certificate is different. The panchanama mentions a one-storied building. In fact, the building has two stories and three shops on the ground floor, which is not reflected in the panchanama. Similarly, the area of the property mentioned in the attachment warrant and the proclamation notice differs from the actual area. In the warrant and the notice, the area of the property is mentioned as 156 square meters instead of 27.75 square meters.
It is pertinent to note that the Decree Holder has produced the valuation of the open space admeasuring 27.75 square meters instead of the two-storied building consisting of three shops on the ground floor to rely on the valuation of the property and thereby misled the Court. The production of the said valuation certificate itself indicates that the Decree Holder has misled the Court by filing a concocted/forged valuation certificate. In fact, the property was partially commercial and partially residential, as it consists of three shops.
It is to be noted that the Petitioners, by clever drafting of the Petition, have skillfully not stated anything about the procedure followed by the Executing Court while passing the order under Order XXI Rule 54 and Rule 66. Petitioners have not brought documents regarding the orders passed by the learned Executing Court under Order XXI Rule 54 and Rule 66 but have only emphasised that the sale certificate is confirmed and, therefore, the Respondents are not entitled to any relief, nor can they raise the ground of procedural lapses in following the procedure under Order XXI Rule 66 or Rule 54. Likewise, they contend that a wrong/faulty valuation report of the property in question does not affect the said sale certificate. They also argued that the law of limitation bars the Petition.
On the contrary, the Respondents and the Objection Petitioner have brought the said documents on record and pointed out to the Court the non-compliance with the procedure by the Executing Court and the fact that the Court was misled by producing an inaccurate/faulty valuation report by the Decree Holder before the Court, and thereby the Decree Holder played a mischief with the Court. Therefore, I do not find substance in the arguments made by the learned counsel for the Petitioners in that regard.
In the wake of the above discussion, it appears that the learned Executing Court did not follow the mandate laid down in Order XXI Rules 54, 64 and 66. Therefore, the order passed under Order XXI Rule 92 of the CPC holding the sale absolute cannot be sustained in the eyes of law. Consequently, issuance of the sale certificate under Order XXI Rule 94 of the CPC does not arise. Hence, I answer Point No. (i) in the negative.
Point No. (ii)
During the argument, the learned counsel for the Judgment Debtor emphasised that the Application filed by the Respondents was well within limitation, as an Application under Order XXI Rule 90 of the CPC was filed at the stage when the Auction Sale itself had already been set aside by the learned District Judge-2 and the legality of the same continued to remain sub judice before the learned Appellate Court as well as this Court. Therefore, in view of the dictum laid down by the Hon’ble Supreme Court in U. Nilan (supra), the Auction Sale cannot be treated as having attained finality until all proceedings challenging the sale are finally concluded. Alternatively, he submitted that the legal representatives of the Judgment Debtor were brought on record on 23rd February 2017 and, for the first time, they appeared in the Court on 02nd March 2017. After their appearance, they raised an objection within a reasonable period. Therefore, the Application was not barred by the law of limitation. Without prejudice to the above, he submitted that, under Section 17 of the Limitation Act, 1963, the limitation period can be postponed where the Applicant could not have discovered the relevant facts due to fraud, concealment, or mistake.
I have given anxious consideration to the submissions of the learned counsel for the parties and gone through Article 127 of the Limitation Act.
It is pertinent to note that the Decree Holder or Auction Purchaser did not raise an objection that the Application was barred by the law of limitation and, therefore, the learned Executing Court as well as the learned Appellate Court had no question arising to deal with the said issue, nor did they consider the same. Therefore, neither the District Court nor the Executing Court has dealt with the question of limitation. For the first time, he has raised the said issue before this Court when, undisputedly, initially, by the order of the learned Executing Court, and thereafter till passing of the order by the learned Appellate Court on 14th November 2017, the sale certificate was cancelled, or not finalised, as the matter remained sub judice before the learned Executing Court. Similarly, the learned District Judge-2, by order dated 18th February 2021, cancelled the sale certificate issued by order dated 02nd July 2012, and till date, the said order remains sub judice.
I would like to reproduce Article 127 of the Limitation Act.
“127.To set aside a sale in execution of a decree, including any such application by a judgment-debtor.”
The period of limitation is prescribed as 60 days from the date of sale.
There is no dispute about the mandate laid down in Article 127 of the Limitation Act that from the date of issuance of the sale certificate, parties have to file the application within 60 days. Undisputedly, in the case at hand, the sale certificate was issued on 02nd July 2012, the original Judgment Debtor died on 06th November 2012, and his LRs were brought on record on 23rd February 2017. Similarly, the learned Executing Court, by order dated 22nd January 2013, set aside the order dated 26th April 2012 for confirming the sale as absolute and cancelled the sale certificate issued on 02nd July 2012. They filed an Objection Petition under Order XXI Rule 90 of the CPC seeking to set aside the auction and cancel the sale certificate on the ground that the decree holder had conducted the proceedings for attachment of the property in execution of the decree by playing fraud upon the Court and Auction Purchaser without complying with the mandatory provisions laid down in Order XXI Rule 54(2) of the CPC. They had also failed to forward the copy of the attachment warrant to the Collector, Aurangabad. Likewise, with an intention to purchase the property at a lower price, the Decree Holder, in collusion with the auction purchaser, valued the open space instead of a two-storied building consisting of three commercial shops, thereby committing a material irregularity. While dealing with Point No. (i), I have already held that “the learned Executing Court did not follow the mandate laid down in Order XXI Rules 54, 64 and 66. Therefore, the order passed under Order XXI Rule 92 of the CPC holding the sale absolute cannot be sustained in the eyes of law. Therefore, the issuance of the sale certificate under Order XXI Rule 94 of the CPC does not arise at all.”
Therefore, in my view, the order confirming the sale, whereby the sale became absolute, and the issuance of the sale certificate pursuant to the said order cannot be sustained in the eyes of law. The said fact was also brought to the notice of this Court and, therefore, in my view, the question of limitation to challenge the same by the Respondents does not arise, as the order dated 26th April 2012 and the issuance of the sale certificate were sub judice before the learned Executing Court, Appellate Court and this Court. Therefore, in my view, the question of limitation to challenge the same does not arise.
Apart from that, it seems that the Decree Holder has not come to the Court with clean hands and has tried to mislead the Court by filing the incorrect/concocted valuation certificate of the open space only instead of the two-storied building consisting of three commercial shops on record. Therefore, in my view, the question of issuance of the sale certificate pursuant to the said order without following the mandate of law does not arise at all. Accordingly, I also find no substance in the learned counsel for the Petitioners' argument that the Application was barred by limitation, when the order confirming the sale as absolute was not passed in accordance with the mandate laid down under Order XXI Rules 54 and 66 of the CPC. Therefore, the question of limitation does not arise. Hence, I answer Point No. II in the negative.
Point No. (iii)
Perused the impugned Judgment and Order. The learned Judge, in paragraphs 20, 21, 22, 23 to 25, 27 to 29, 31, 33, and 34, and paragraph No. 37, on 18th February 2021, dealt with the controversy raised before him.
The learned Appellate Court, in paragraph No.33, has categorically observed that the Decree Holder had not provided the correct valuation to the Court and thereby suppressed the correct valuation of the property from the Court and obtained the proclamation of sale and thereby committed fraud upon the Court. Similarly, the Executing Court did not consider the valuation documents in proper perspective and passed the auction order. In paragraph No. 37, it is held that the Appellants, i.e. the respondents herein, had satisfied from the record that material irregularity or fraud resulted in substantial injury to them, as the entire property was sold without proper valuation. They, being the legal heirs of the Judgment Debtor, have a right and rateable interest in the property. The learned Appellate Court also considered the sale deed executed by the Judgment Debtor in favour of the Objection Petitioner and, after considering it, allowed the Appeal.
Thus, I do not find any illegality or perversity in the impugned order to warrant interference at the hands of this Court in its Writ Jurisdiction. On the contrary, I confirm the findings recorded by the learned Appellate Court in paragraph No. 37. In view of these findings, the Petitioners are not entitled to any relief as claimed. It is a settled principle that a person who comes to the Court with unclean hands, suppresses material facts, and misleads the Court to believe otherwise is not entitled to any relief from the Court of justice. In the present case, suppressing the correct valuation of the property and producing a concocted/incorrect valuation certificate relating only to the open space, instead of the two-storied building consisting of three commercial shops, materially affected the proceedings before the Executing Court.
Apart from the above, I have already held that the learned Executing Court did not follow the mandate laid down in Order XXI Rule 54 of the CPC. Non-compliance with the mandatory procedure for attachment of the property, coupled with discrepancies in the description and area of the property and failure to determine its valuation properly, goes to the root of the execution proceedings. Therefore, to that extent, the impugned order is liable to be modified. The learned Executing Court is directed to commence a sale process afresh from the stage of Order XXI Rule 54 of the CPC instead of Rule 66 of the CPC. To that extent, I answer Point No. III accordingly.
APPLICABILITY OF THE JUDGMENTS CITED :-
I would like to deal with the judgments relied upon by the learned counsel for the Petitioners on the points of limitation, doctrine of res judicata, material irregularity and maintainability as under:
The learned counsel for the Petitioners has placed reliance on the judgment in Mangilal (supra) and submitted that in the said case, this Court has held that failure to take objection about the existence of a well and mango trees in the sale proclamation at that stage was fatal to the Judgment Debtor; therefore, the Judgment Debtor was prohibited from objecting on the ground of material irregularity. Accordingly, this Court held that the sale was concluded on 02nd May 1986 and the Judgment Debtor filed the application to set aside the sale on 29th April 1991, which was clearly beyond the period of limitation. Section 5 of the Limitation Act did not attract an application under Order XXI. In paragraph No. 6, this Court had dealt with Article 127 and the period of limitation. However, in the case at hand, I have already held that the Decree Holder, in collusion with the auction purchaser, has suppressed the material facts and placed the incorrect/concocted valuation certificate of the open space on record instead of a two-storied building consisting of three commercial shops and, thereby, misled the Court and committed fraud upon the Court by producing the incorrect valuation certificate. Therefore, in my view, the law laid down in the said judgment is hardly of any assistance to the Petitioners.
In ICICI Ltd. (supra), this Court has held that the increase in price is not the reason to set aside the sale which has been completed as per the procedure. However, in the case at hand, an increase in the property’s price is not in question; rather, the Decree Holder filed an incorrect/concocted valuation certificate on record for the open space only, instead of the property in question, and thereby misled the Court. Therefore, the law laid down in the said case that an increase in the valuation of the property is not a ground to set aside the sale would not help the Petitioners.
The facts in Kadiyala (supra) were that the learned Executing Court rejected the Application under Order XXI Rule 90 filed by the Judgment Debtor for setting aside the sale on the ground that they had no saleable interest, in view of the condition in the lease that the property was not to be alienated for 15 years and the intentional relinquishment of a known right. Therefore, the Executing Court rejected the Application. The facts in that case are distinct from the facts in the case at hand; therefore, the dictum laid down therein would not help the Petitioners.
In Saheb Khan (supra), this Court held that the charge of fraud and material irregularity must be specifically made through sufficient particulars and that bald allegations are not sufficient, and the Respondent therein was unable to establish that he had suffered substantial injury by reason of any irregularity or fraud. However, in the case at hand, I have already held that the Decree Holder suppressed material facts, placed an incorrect valuation certificate of the open space, and thereby misled the Court and committed fraud upon the Court by producing an incorrect valuation certificate. Therefore, in my view, the law laid down in the said judgment is hardly of any assistance to the Petitioners.
In R. P. A. Valliammal (supra), this Court held that once the title of the original owner has been negatived and has become final, the same cannot be raised again by her or her heirs. The facts in that case and the facts in the case at hand are distinct; accordingly, the mandate laid down therein does not apply to the case at hand.
In Shankar (supra), this Court held that despite service of notice under Order XXI Rule 66 of the CPC, the Judgment Debtor failed to appear, the proclamation was ordered to be issued, and the sale was fixed for a certain date. On that date, the Judgment Debtor appeared and, as an agriculturist within the meaning of the Deccan Agriculturists Relief Act, applied to the Court to be allowed to satisfy the decree in instalments. It was held that the appeal was barred on the principle of constructive res judicata. The Court proceeded to make the order which it did. As discussed above, the facts in that case and the facts in the case at hand are distinct and would not help the Petitioners.
In G. R. Selvaraj (supra), the Hon’ble Supreme Court held that even in the context of a material irregularity under Order XXI Rule 66(2)(a) of the CPC, if the Judgment Debtor had been put on notice by the executing Court but had acquiesced by taking no action before the date of the sale, he would be precluded from assailing its legality or correctness thereafter. However, in the case at hand, it does not appear that the Executing Court put the Judgment Debtor on notice about the Decree Holder's production of the valuation certificate or the fixation of the property's valuation with his assistance. Still, the Decree Holder produced the incorrect valuation certificate of the property on record. Therefore, the facts in that case differ from the facts in the present case and do not help the Petitioners.
In Barkat Ali (supra), the Hon’ble Supreme Court held that no objection was filed despite the service of notice under Order XXI Rule 22 of the CPC. The Court proceeded to the next stage. The Executing Court could not entertain an objection filed after issuance of the warrant of attachment. However, in the present case, the incorrect valuation certificate of the property in question was submitted before the order was passed. Therefore, it would not help the Petitioners in support of their contentions.
Per contra, the learned Advocate for the Respondents/LRs. of JD has placed reliance on the following judgments :
In U. Nilan (supra), wherein the Hon’ble Supreme Court has
held that “sale does not become absolute or irrevocable merely on passing an order confirming the sale under Order 21, Rule 92 but it would attain finality on the disposal of the appeal, if any, filed against an order refusing to set aside the sale”.
In the present case, the Objection Petitioner has challenged the order confirming the sale passed by the Executing Court by filing an application under Order XXI Rule 90 read with Section 47 of the C.P.C. Pursuant thereto, the Executing Court set aside the order dated 26th April 2012, whereby the sale had been confirmed, and cancelled the sale certificate. Therefore, the order remained in force until the judgment-debtor challenged it before the Executing Court. In view thereof, it appears that, having regard to the dictum laid down in U. Nilan (supra), the sale did not attain finality.
In Sai Enterprises (supra), the question that arose before the Supreme Court was whether it is the duty of the executing court to consider whether sale of only a part of the property would be sufficient to meet the decretal debt. The Hon’ble Supreme Court held that the expression “necessary to satisfy the decree” clearly indicates the legislative intent that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. “In all execution proceedings, the court has first to decide whether it is necessary to bring the entire property to sale or such portion thereof as may seem necessary to satisfy the decree”.
In Ambati (supra), the Hon’ble Supreme Court laid down the dictum that “There is a duty cast upon the Court under Order-XXI, Rule – 64 to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored”.
In the present case, it is undisputed that the money decree was for a sum of Rs.2,00,000/-, and the execution proceedings were initiated for recovery of Rs.2,27,525/-, inclusive of interest. Therefore, in view of the law laid down by the Hon’ble Supreme Court, the learned Executing Court was required to ensure that the property was sold only to the extent necessary to satisfy the decree. It is not in dispute that the decree-holder produced a valuation certificate describing the property as open space admeasuring 27.75 square meters and assessing its value at Rs. 4,02,375/-. However, it has come on record that the objector-petitioner purchased one shop forming part of the said property for a consideration of Rs.3,16,000/-. This fact itself indicates that the sale of one shop was sufficient to satisfy the decretal amount. Despite this, the decree-holder proceeded based on an incorrect/concocted valuation of the property and produced a valuation certificate allegedly depicting its value at Rs.4,02,375/-. Thus, it is evident that the learned Executing Court failed to adhere to the law laid down by the Hon’ble Supreme Court in the judgments referred to hereinabove and failed to ensure that only such part of the property as was necessary for satisfaction of the decree was put to sale. In view of the settled position of law and the facts and circumstances of the present case, the impugned sale cannot be sustained in law and is, therefore, liable to be set aside.
Similarly, in Sanjay (supra), the Hon’ble Supreme Court held that “If improper valuation of the property at the time of sale was shown then it is a sufficient ground to set aside the sale.” In the present case, the decree holder has undisputedly produced an improper valuation certificate for the property in question; therefore, the sale is liable to be set aside on that ground.
In Jaikisandas (Supra), this Court has held that, “Material misdescription in sale proclamation would vitiate the sale.”
In the case at hand,it has come on record that there was a material misdescription of the property attached in execution proceedings for auction/sale proclamation; therefore, in view of the dictum in Jaikisandas, the sale vitiates.
Similarly, in Mr. Gabriel (supra), this Court observed that “The conditions for attachment of immovable property are mandatory in nature and, therefore, it is necessary for the attachment to be effective, the strict compliance is very much necessary. If the mandatory conditions are not complied with, there is no attachment in the eyes of the law.” In the present case, it is apparent that the decree holder has not complied with the mandatory conditions laid down in Order XXI Rule 54 of the CPC; therefore, the dictum in the above judgment applies to the case at hand. Accordingly, the sale is liable to be set aside on that ground as well.
In Danesh Singh (supra), the Hon’ble Supreme Court has held that, after considering the entire Order XXI, it has concluded in paragraph No. 256 as under:
256.A conspectus of the aforesaid detailed discussion on the position of law as regards the doctrine of lis pendens along with Rules 58, 89 to 92, 99 to 104 of Order XXI CPC respectively and Section 47 CPC is as follows:
(i.) Section 52 of the 1882 Act embodying the doctrine of lis pendens would apply to suits where any right to the property in question is directly and specifically in issue. Whether any right in the property was directly and specifically in question in the suit would depend on the facts and circumstances of each case. The doctrine cannot blindly be made inapplicable to suits in which the plaint contains a specific averment that the mortgaged property be attached and sold in lieu of the decree or a charge be created on the property. If interpreted so, any judgment-debtor can render the decree incapable of execution by transferring his interest in the property during the pendency of such a suit.
(ii.) Rule 89 of Order XXI CPC provides an opportunity to any person claiming an interest in the property sold or a person acting for or on behalf of the persons having such interest, another opportunity to save the property from the clutches of the sale. A sine qua non for setting aside the sale under this rule would be the payment of the deposit as prescribed therein within a period of sixty days from the date of the sale. For the purposes of this rule, a pendente lite transferee of the judgment-debtor would also fall under the ambit of the phrase “person claiming an interest in the property sold”.
(iii.) Rule 90 of Order XXI CPC provides that the sale shall be set aside if there exists any material irregularity or fraud in publishing or conducting the sale. Furthermore, such material irregularity or fraud must cause a substantial injury to the applicant under Rule 90. In other words, there must be a direct nexus between the material irregularity or fraud and the substantial injury caused to the applicant.
(iv.) The words “material irregularity in publishing or conducting it” in Rule 90 would include any material irregularity or fraud occurring at a stage prior to the proclamation of sale as well, provided that the applicant did not have an opportunity to raise or could not have raised such a grievance at the appropriate time. Furthermore, the mere absence of or any defect in the attachment, by itself, cannot be a ground for setting aside the sale under Rule 90, unless substantial injury is proved. The applicant must make specific averments as regards the alleged irregularities or fraud and convince the executing court that a substantial injury has been caused to him as a consequence.
(v.) The absence of a saleable interest on the part of the judgment-debtor in the suit property cannot be brought in as a ground under Rule 90 of Order XXI CPC. Such a ground would squarely fall within the ambit of Rule 58 of Order XXI CPC if the sale has not yet been confirmed.
(vi.) Rule 92(3) of Order XXI CPC states that no person against whom an order under Rule 92 is made (either confirming the sale under Rule 92(1) or setting it aside under Rule 92(2)) can institute a separate suit in that regard. However, there is a very narrow scope for a person to file a separate suit despite the bar under Rule 92(3). The reason for such a separate suit must be that the execution proceedings and the sale were without jurisdiction and therefore, a nullity and not binding on the plaintiff who has instituted a separate suit.
(vii.) Having said so, before holding such a separate suit instituted by a plaintiff alleging that the entire execution proceedings were without jurisdiction and therefore, the sale was a nullity, maintainable, courts must be vigilant in ensuring that the plaintiff was not a party to the original decree or a representative of a party to the original decree, as stated in Section 47 CPC. If so, instead of filing a separate suit, such persons must prefer an application under Section 47 CPC. Upon any failure to do so, their separate suit would be hit by the bar contained in Section 47 CPC, which specifically uses the words “and not by a separate suit”.
(viii.) The term “third party” under Rule 92(4) would mean a party other than the judgment-debtor, decree-holder or the auction-purchaser and would refer to a party who has not had his right, title or interest vis-à-vis the property in question adjudicated under Rule 58, Rule 97 or Rule 99 of Order XXI CPC respectively. To put it very simply, the term “third party” under Rule 92(4) would refer to a party who is extraneous to the original suit proceedings and the proceedings under Order XXI CPC, and who either has not had his right, title or interest adjudicated or, having the opportunity to have his right, title or interest adjudicated, has not availed such a remedy within the required time. Such a “third party” would also be someone who falls outside the scope of Section 47 CPC.
(ix.) Rule 92(4) is not a provision which confers any right on the third party to institute a suit for challenging the title of the judgment-debtor to the property which is subject to the execution proceedings. It is merely a procedural provision which states that such a suit must be instituted against the auction-purchaser, where the decree-holder and judgment-debtor would be necessary parties.
(x.) When a party other than the judgment-debtor, including a third party, is dispossessed during the course of execution of a decree, the only remedy for such a dispossessed party would lie in filing an application under Rule 99 complaining of its dispossession. In such an application, all questions including that of the right, title and interest of the parties in the proceeding, to the property, would be examined by the executing court.
(xi.) The words “may” used in Rule 99 along with the words “and not by a separate suit” used in Rule 101 must not be read to mean that a party who has been dispossessed has two options, i.e., to either prefer an application under Rule 99 or to file a separate suit, the moment they are dispossessed. This would defeat the underlying object of the amendment made to the scheme of Rules 99 to 104 respectively wherein the executing court has been specifically empowered to look into the questions relating to the right, title and interest of the parties, quite akin to that which would have been done by way of a separate suit. Once the period of limitation for preferring an application under Rule 99 lapses, the person who has been dispossessed in the course of the execution of the decree, including a third party, cannot file a separate suit to circumvent or bypass the said prescribed period of limitation.
(xii.) Rule 102 prevents the executing court from passing any order under Rule 100 if it is found that the applicant under Rule 99 is a transferee pendente lite of the judgment-debtor. This, again, cannot be construed as giving leeway to such a person to institute a separate suit. We say so for the simple reason that, even in the separate suit, the law would not look favourably upon a pendente lite transferee, and no relief of declaration of title and/or possession would be granted to him. His fate would be the same as under an application under Rule 99.
(xiii.) Therefore, - First, the separate suit instituted by the respondent nos. 1 and 2 respectively would be non-maintainable because they are representatives of the judgment-debtor, and the bar envisaged under Section 47 CPC would squarely apply to their case. Secondly, having not availed the remedy under Rule 99 of Order XXI CPC within time, the separate suit instituted for the same relief(s) would be barred. Thirdly, even if the aforesaid two reasons assigned by us could be said not to affect the suit instituted by the respondent nos. 1 and 2 respectively, they would still not be entitled to the reliefs claimed owing to them being pendente lite transferees of the judgment-debtor whose transaction would be hit by the doctrine of lis pendens.
As per clauses (ii) to (iv) of the said conclusion as well as law laid down in the judgments relied on by the learned Advocate for the Judgment Debtors as discussed in aforesaid paragraphs, it is apparent from the record that the Decree Holder has committed material irregularity or fraud before the proclamation of sale as well, and the Judgment Debtor did not have an opportunity to raise such grievance or could not have raised such grievance at the appropriate time. It is further evident from the record that the incorrect valuation of the property has caused substantial injury to them. Therefore, they are entitled to have the sale set aside under Order XXI Rule 90 of the CPC.
It is categorically evident that Petitioner No.1 had produced the incorrect/concocted valuation certificate in respect of the property in question, i.e. produced valuation of the open space instead of a two-storied building consisting of three commercial shops and thereby misled the Court and sold the property in question in auction at a very low price, based on said incorrect valuation certificate of the property and thereby played fraud upon the Court; as such, he is liable to pay the costs.
CONCLUSION: -
As a result, the Petition, being bereft of merits, stands dismissed with costs of Rs.50,000/-, to be paid by the Decree Holder. The Decree Holder/Petitioner No.1 is directed to deposit the costs before the learned Executing Court within ten weeks from today, failing which, the execution proceedings shall stand dismissed without further reference to the Court.
On deposit of the said costs, execution proceedings be proceeded, and an amount of Rs.20,000/- be deposited with the District Legal Services Authority, Aurangabad and an amount of Rs. 30,000/- be distributed equally amongst the Respondents.
Needless to clarify, the learned Executing Court is directed to commence the execution proceedings afresh for sale of the property in question from the stage of Order XXI Rule 54 of the CPC instead of Order XXI Rule 66 of the CPC and taking into consideration the mandate in Rule 64 of the CPC.
After pronouncement of the judgment, learned counsel for the Decree Holder submitted that the Decree Holder intends to challenge the judgment before the Hon’ble Supreme Court and, accordingly, prayed for a stay of the judgment's operation for six weeks from today.
Having considered the request and the fact that, by order dated 4th January 2022, interim relief was granted in favour of the petitioners, I deem it appropriate to stay the operation and implementation of the judgment for a period of six weeks from today.
Accordingly, the operation and implementation of the judgment shall remain stayed for a period of six weeks from today.
Footnotes
- 1.AIR 1997 SC 1996
- 2.AIR 1949 BOMBAY 79
- 3.2025 INSC 1353
- 4.2025 SCC OnLine SC 2805
- 5.2002(3) Mh.L.J. 857
- 6.2007(3) Mh.L.J. 271
- 7.(2000) 3 SCC 87
- 8.(2006) 4 SCC 476
- 9.2008 DGLS (SC) 168
- 10.(2024) 3 SCC 308
- 11.2017 ALL SCR 1080
- 12.(1996) 10 SCC 747
- 13.1999 AIR SCW 3795
- 14.(2007) 13 SCC 576
- 15.AIR 1990 SC 119
- 16.AIR 2017 SC 2565
- 17.AIR 2008 SC 2061
- 18.AIR 1976 SC 737
- 19.AIR 1965 SC 834
- 20.AIR 1991 Bombay 341
- 21.2007 ALL MR (Cri) 231