TaxTMI 
TaxTMI 
2025 (12) TMI 1794
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the plaintiffs-respondent nos. 1 and 2 respectively. III. Manner in which the auction was conducted. IV. Maintainability of the suit instituted by the respondent nos. 1 and 2 respectively V. Relief granted. C. THE IMPUGNED JUDGMENT D. SUBMISSIONS ON BEHALF OF THE PARTIES I. Submissions on behalf of the appellants II. Submissions on behalf of the respondent nos. 1 & 2 respectively E. ISSUES FOR DETERMINATION F. ANALYSIS I. Whether the transfer of the suit property is hit by Section 52 of the 1882 Act and the doctrine of Lis Pendens? a. Whether the suit property was "directly and specifically in question" in the suit instituted by the respondent no.6-bank and the import of the words "any suit" along with "any right" occurring in Section 58 of the 1882 Act. II. Whether the respondent nos. 1 and 2, respectively, could have sought for any relief under Rule(s) 89 or 90 of Order XXI CPC, respectively? a. Scope and application of Rule 89 of Order XXI CPC, with specific reference to whether pendente lite transferees can maintain such an application b. Scope and application of Rule 90 of Order XXI CPC i. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and 2 respectively herein to be maintainable. A. FACTUAL MATRIX 3. The description of the parties before this Court, the High Court, the Appellate Court, and before the Trial Court is tabulated as follows :- BEFORE THIS COURT BEFORE THE HIGH COURT BEFORE THE APPELLATE COURT BEFORE THE TRIAL COURT PARTICULARS Appellants Appellants Appellants Defendant Nos. 1-3 Auction Purchasers and sons of one of the judgment-debtors i.e., the respondent no.4. Respondent Nos. 1-2 Respondent Nos. 1-2 Respondent Nos. 1-2 Plaintiffs Wife and husband, respectively through their LRs, who purchased the suit property from respondent no. 3. Respondent No. 3 Respondent No. 3 Respondent No. 3 Defendant No. 4 One of the judgment- debtors and vendor of the suit property. Respondent No. 4 Respondent No. 4 Respondent No. 4 Defendant No. 5 One of the judgment- debtors and father of the appellants. Respondent No. 5 Respondent No. 5 Respondent No. 5 Defendant No. 6 One of the judgment- debtors and sister of the respondent nos. 4 & 5. Respondent No. 6 Respondent No. 6 Respondent No. 6 Defendant No. 7 De....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion came to be instituted by the respondent no. 6- Bank and the second purchase occurred after its institution. 10. Thereafter, the respondent nos. 1 and 2 respectively, are also said to have mortgaged the suit property or a portion thereof with the Ballabgarh Primary Co-op Agricultural and Rural Development Bank for the purpose of availing a loan. 11. Meanwhile, the Executing Court, vide order dated 08.10.1985, attached the entire mortgaged property, i.e., 116 Kanals 13 marlas, as the judgment-debtors failed to make the payment to the respondent no.6-bank. Consequently, an auction of the mortgaged property came to be held on 20.06.1988. In the said auction, the appellants, who are the sons of one of the judgment debtors, i.e., respondent no. 4, were declared as the highest bidders. The appellants' bid for a sum of Rs. 35,000/- for the entire mortgaged property, was accepted. 12. On 30.08.1988, the Executing Court confirmed the auction sale. The delivery of possession in favour of the appellants is also said to have been completed on 24.06.1989. Later, after a month, on 28.07.1989, the Executing Court had disposed of the execution proceedings after recording its satisf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd 2 respectively 19. In order to ascertain the ownership of the respondent nos. 1 and 2 respectively to the suit property, the Trial Court found it necessary to determine whether the respondent no. 3 possessed any subsisting right to the suit property at the time of transfer in favour of the plaintiffs-respondent nos. 1 and 2 respectively. While answering this issue in the affirmative, the Trial Court observed that the original decree in the suit instituted by the respondent no. 6-bank was passed only on 12.11.1986, whereas, the respondent no. 3 executed the sale deed on 24.06.1985. Therefore, since the suit property was purchased before the passing of the original decree, it could not be said that the respondent no. 3 lacked any right to transfer the property. It further held that the attachment of the property by the Executing Court would not affect the rights of those parties who had purchased the property prior to such attachment. 20. However, on the issue of possession, the Trial Court observed that no evidence had been adduced by the respondent nos. 1 and 2 respectively to establish that they still remained in possession over the suit property. Hence, it concluded that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and that the same was clear from the conditions of sale. However, in order to circumvent the said restriction, the appellants, being the sons of one of the judgment debtors, had participated in the auction on their behalf. Thus, the Trial Court held that the manner in which the auction was conducted was not permissible, either in law or in equity. IV. Maintainability of the suit instituted by the respondent nos. 1 and 2 respectively 24. The Trial Court noted that the appellants-defendant nos. 1 to 3 respectively failed to make good their case as to how the suit was not maintainable. It held that the appellants failed to show why the plaintiffs-respondent nos. 1 and 2 respectively were estopped from instituting the said suit. Accordingly, the Court answered the issue of maintainability in favour of the respondent nos. 1 and 2 respectively. It must be noted that the argument that the suit would be barred on account of Rules 99 to 103 of Order XXI respectively, was not raised by the appellants before the Trial Court. V. Relief granted 25. The Trial Court held the suit to be maintainable and passed a decree in favour of the plaintiffs-respondent nos. 1 and 2 respectively. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) as per Section 47 of the Code of Civil Procedure, 1908 (for short, "the CPC"). It held that despite such status, the suit would be maintainable owing to the fact that the auction sale in the execution proceedings was a result of fraud, thereby vitiating the entire proceedings. The Court arrived at the finding that the respondent nos. 1 and 2 respectively were bona fide vendees, and that a decree or sale obtained through fraud must not cause any prejudice to them. The High Court held that despite the auction sale being confirmed by the Executing Court, a separate suit would be maintainable, and, stating so, it upheld the decision of the courts below, although for different reasons, and consequently, dismissed the appeal preferred by the appellants. D. SUBMISSIONS ON BEHALF OF THE PARTIES I. Submissions on behalf of the appellants 30. Mr. Vikas Singh, the learned Senior Counsel appearing for the appellants would argue that since the decree obtained by the respondent no. 6-bank had attained finality as no appeal had been preferred against it, the judgment-debtor(s) had no subsisting right, title and interest in the mortgaged property for the purpose of selling a portion of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d under Section 47 CPC. 34. Mr. Singh further submitted that no material facts regarding fraud were pleaded in the plaint by the respondent nos. 1 and 2 respectively as required under Order VI Rules 2 and 4 of the CPC respectively, hence, no issue regarding fraud was framed by the Trial Court. He stated that allegation of fraud was raised for the first time before the High Court. 35. Furthermore, Mr. Singh submitted that as regards the alleged irregularities in the auction sale, the respondent nos. 1 and 2 respectively could have preferred an application under Order XXI Rule 90. However, even if they had preferred such an application, they would have still remained unsuccessful since no sale is liable to be set aside solely on the ground of fraud or irregularity as regards the price at which the property was sold. He submitted that an auction sale cannot be reversed solely on the ground of inadequacy of price. In this regard, he placed reliance on the decision of this Court in Siddagangaiah v. N.K. Giriraja Shetty, reported in (2018) 7 SCC 278. He also submitted that due sanctity must be attached to the auction sale conducted by the executing court and to make this argument g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e separate suit in no manner suffered from the want of maintainability as per Section 47 of the CPC. 40. To indicate the bona fides of the respondent nos. 1 and 2 respectively, Ms. Singh submitted that the respondent no. 3 was competent and had a proper title in law to transfer the suit property also because the warrant of attachment of the mortgaged property came to be issued only on 08.10.1985, i.e., much after the sale in their favour. The respondent nos. 1 and 2 respectively had also obtained a No Encumbrance Certificate from the Office of the Sub-Registrar before their purchase. The certificate reflected no charge over the property. After obtaining these certificates, the respondent nos. 1 and 2 respectively took another loan over the suit property which would not have been possible if there were encumbrances over the property. 41. She further submitted that given the mandate of Order XXI Rule 66(2)(a), it belies credence that there was a need to sell the entire mortgaged property for a paltry amount of Rs. 22,753/-, when just four years before the auction, the respondent nos. 1 and 2 respectively had paid Rs. 70,000/- for the suit property which constituted 1/4th of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the judgment-debtor" upon whom the bar to a separate suit as envisaged under Section 47 CPC could be said to be applicable? V. Whether the respondent nos. 1 and 2 respectively, should have sought the remedy made available to a dispossessed third party under Rule 99 read with Rules 100 to 102 of Order XXI of the CPC respectively? If yes, whether the failure to do so would affect the maintainability of a separate suit for the same relief(s)? F. ANALYSIS I. Whether the transfer of the suit property is hit by Section 52 of the 1882 Act and the doctrine of Lis Pendens? 46. It was submitted on behalf of the appellants that the decree obtained by the respondent no. 6-bank had attained finality owing to no appeal being filed against the same. Therefore, the judgment debtor- respondent no. 3 could not be said to have any subsisting right, title, or interest in the suit property to transfer the same to the respondent nos. 1 and 2 respectively, after the passing of the original decree. Moreover, it was submitted that the suit instituted by the respondent nos. 1 and 2 respectively was hit by the doctrine of lis pendens, and therefore, that the respondent nos. 1 and 2 respecti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....diction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order, has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force." 49. Section 52 of the 1882 Act stipulates that during the pendency of any suit in a court of competent jurisdiction in which any right to the immovable property is directly and specifically in question, such property cannot be transferred or otherwise be dealt with by any party to the suit or proceedings with a view to affect or defeat the rights of any other party under any decree or order. The only exception that the provision carves out is with regard to a situation where the transfer of the property is made permissible under the authority of the court and in accordance with the terms imposed by the court. 50. The explanation to the section further elaborates that the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint and would continue until the suit is disposed of by a final....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it instituted by the respondent no. 6-bank which was only for the recovery of money. The submission although seemingly lucrative yet is flawed in our considered opinion for the reasons elaborated hereinbelow. 54. The Transfer of Property (Amendment) Act, 1929 had brought certain significant changes by way of which the present Section 52 has come into existence. It had substituted the words "active prosecution" occurring at the beginning of the provision with the word "pendency" and the words "a contentious suit or proceedings" was replaced with the words "any suit or proceedings". Along with this, an explanation was also inserted in order to clarify that the pendency of a lis would continue till the satisfaction or discharge of the decree, or until the satisfaction or discharge of the decree has become unobtainable by reason of the expiration of the prescribed limitation period. 55. There is no gainsaying that by the substitution of the words "a contentious" with "any", the scope of the provision has been widened. We say so because, first, the dictionary meaning of the word "contentious" would be - an adversary, or a litigation between adverse or contending parties, or a judi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d stand attracted. In other words, the amendment, considered cumulatively, has widened the application of Section 52 of the 1882 Act. 59. In this regard, we may refer to the decision of the Full Bench of the Allahabad High Court in Mahesh Prasad & Ors. v. Musammat Mundar, reported in 1950 SCC OnLine All 16, wherein the plaintiff had filed a suit for maintenance, and prayed that it be charged on the whole or a sufficient portion of the ancestral property specified in the plaint. The suit was dismissed by the trial court, however, in appeal, the appellate court fixed an amount as maintenance by creating a charge on the property vide its decree dated 21.02.1917. Sometime on or after 01.04.1930, the property had been sold to the transferees. Thereafter, the plaintiff-appellant filed an application for execution of the decree against the defendants as well as the transferees. As a result, the executing court had directed the sale of the properties in execution. The transferees claimed that they were transferees for consideration and without notice of the charge. One of the main issues before the High Court was whether the doctrine of lis pendens would apply to the facts of the case. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it or proceeding which is not collusive' have been substituted for the words 'a contentious suit or proceeding', and the Explanation has been added. These amendments were not with the object of changing the law of lis pendens, but to remove certain doubts and conflicts which had arisen in the decisions of the High Courts in India. There is no doubt that the amended section will apply to the transfers which have taken place after the amendment came into force. The only question is whether in a suit filed by a Hindu widow, claiming that she was entitled to be maintained out of the income of the properties mentioned in the plaint, which she claimed were joint family properties in which her husband had a share and asking for a charge to be created on the said property, any right to immoveable property is directly and specifically in question. The right to be maintained out of the income of immoveable property is no doubt right to immoveable property. It may be mentioned that the words are not 'right in the immoveable property', but 'right to immoveable property'. The fact that the Hindu widow claimed that this was property belonging to her husband, that she was entitled to be maintaine....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to the question of lis pendens, Smt Thopamma had filed the suit in 1968 for the creation of charge of maintenance, inter alia, on the properties in question. Explanation to Section 52 of the TP Act makes it clear that pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint. Thus, on the date of execution of the sale deed on 9-11-1974, the suit filed by Thopamma was pending. Thus, the provisions contained in Section 52 would clearly apply to the case. In Nagubai Ammal v. B. Shama Rao [Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593] this Court observed: (AIR p. 597, para 9) "9. On this question, as the plaint in OS No. 100 of 1919-20 praying for a charge was presented on 6-6-1919, the sale to Dr Nanjunda Rao subsequent thereto on 30-1-1920 would prima facie fall within the mischief of Section 52 of the Transfer of Property Act, and would be hit by the purchase by Devamma on 2-8-1928 in the execution of the charge decree. Sri K.S. Krishnaswami Ayyangar, learned counsel for the appellants, did not press before us the contention urged by them in the courts below that when a plaint is presented in forma pauperis the lis comme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nnot be invoked in case of a simple money suit. The Court held that Section 52 does not state that it is not applicable to suits for recovery of money, and the provision would not say so, because the Explanation to the provision states that the pendency of any suit continues until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained. It was further held that the parties must not create new rights in the property till the execution proceedings are discharged. The Court underscored that if Section 52 was read as always excluding money suits, despite a specific prayer in the plaint as regards the attachment of the property, a decree passed therein would be rendered meaningless, since the party would be free to alienate the property and there would be no property available to execute the money decree. The relevant observations read thus :- "7. [ ... ] In this context only, the Supreme Court in the case of Vidur Impex & Traders Put. Ltd. v. Tosh Apartments Pvt. Ltd., CDI 2012 SC 560 has clearly ruled that the transfer of any right, title or interest in the suit property or the con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e careful enough to mention in the Explanation that the pendency of a suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding, namely, filing of an Interlocutory Application for Attachment Before Judgment. Moreover, if Section 52 is excluded to money suit, then the money decree obtained after a long contest from a Court of competent jurisdiction will become meaningless, if there is no property available for execution of money decree, as a result, the decree holder of money suit will go remediless.[...]" (Emphasis supplied) 64. In a simple mortgage, the property is encumbered with the mortgagee's interest in it, which means that any purchaser of the property would receive an interest in the property subject to the mortgagee's rights, irrespective of whether the transfer is with or without notice of the mortgage, unless there is anything to the contrary to this effect in the mortgage agreement. It is in the same breath that we say that a transferee of a mortgaged property will have only such interest which the mortgagor himself had at the time of transferring the property. 65. In the present case....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onversant with the fact of the case and is authorized and competent to institute the present suit vide power of attorney dt.29.4.71. The defendant No.1 was given a loan of Rs. 20,000 /- against hypothecation of his tractor bearing No.HRG884 7 and the personal guarantee of defendant no.2 and mortgage of movable property by defendant no. 1. The defendant no. 1 executed several documents in favour of the bank enumerated in para no. 4 of the plaint. The said amount was disbursed to defendant no. 1 on 31.7.70. Besides execution of the documents given above, the defendant no.1 mortgaged his agricultural land with the plaintiff vide registered mortgage deed dt. 6.6. 70 and the details of the mortgage can be found in para no. 6 of the plaint. The amount of loan was to carry interest @ 2 o/o over the R.B.I. rate with a minimum of 91;20;0 which was subsequently raised to 15112% The said amount as to be repaid in six half yearly in statements. The defendants remained irregular in payment of the amount. They acknowledged their liability by signing acknowledgment in favour of the plaintiff on various dates, last of which is 5.6.79. The defendant No 1 &2 died and the defendants no. 1a to 1c and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., we must first look into Order XXI, more particularly, the various kinds of remedies that are contemplated under Rules 89 to 92 thereunder. We find it necessary to do so because - first, the counsel appearing for the appellant seems to have made an argument before the High Court that the plaintiffs-respondent nos. 1 and 2 respectively, should have preferred an application under Rule 89 of Order XXI CPC before the confirmation of the auction- sale and upon failing to do so, and allowing the sale to be confirmed, they would have no remedy. 72. Secondly, Mr. Vikas Singh would submit that a sale made during execution by the executing court must be accorded some sanctity and not be left vulnerable to general claims of irregularity or fraud. He would argue that the respondent nos. 1 and 2 respectively must have preferred an application under Rule 90 immediately after they got to know of the alleged irregularities. However, even in such a scenario, several essentials must have been fulfilled for them to successfully set-aside the sale. Having not fulfilled those essentials, it is his view that their application under Rule 90 would have also been unsuccessful. 73. Thirdly, Ms. Apara....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to the decree-holder. 77. What can be discerned from the aforesaid is that the heart of the provision lies in the expression, "apply to have the sale set aside on depositing in Court". The strict nature of the rule is reflected by the necessary condition stipulated by the legislature that the sale would be set-aside only upon the payment of a deposit of the prescribed amount. In other words, the deposit of the amount stipulated in sub- rule (1) of Rule 89 is sine qua non for an application seeking to set aside the execution sale under this rule. 78. A careful perusal of the rule indicates that it gives the judgment debtor another opportunity to retain his property, even after the property is sold, by paying the decretal amount to the decree-holder and compensating the auction purchaser with five percent of the purchase money. In Challamane Huchha Gowda v. M.R. Tirumala, reported in (2004) 1 SCC 453, this Court held that Rule 89 provides the judgment-debtor a final opportunity to put an end to the dispute and prevent his dispossession from the property, before the sale is confirmed by the court. If the conditions prescribed under this rule are satisfied, then the executing co....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... property". There remains very little reason for the courts to extend the benefit of Rule 89 to the judgment-debtor himself but not to a transferee pendente lite of the judgment-debtor. 80. A perusal of the amendment to Rule 89 made by the Amendment Act of 1976 would prove beneficial in the answering the aforesaid question. Through the amendment, the words, "any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale" was replaced with "any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person". 81. The Andhra Pradesh High Court in Pallepu Poleswari v. Tammisetty Nageswarao Rao and Others reported in 2011 SCC OnLine AP 601 had looked into what had prompted the legislature to amend Rule 89 and stated that the impetus was given by the decision of a Full Bench of the Patna High Court in Onkar Nath Jalan v. Ramanand Prasad reported in AIR 1970 Patna 368. In the said decision, the Full Bench had suggested a change to Rule 89 along the lines of what it thought would truly be in consonance with the intent of the provis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he above amendment and it may be reaffirmed that no prudent man is likely to waste his good money in depositing it for the benefit of the judgment-debtor merely in a gratuitous manner." 19. It is indeed gratifying that the text suggested by the Full Bench were adopted verbatim, by the Parliament and it was incorporated in Rule 89, in the year 1976." (Emphasis supplied) 82. On a bare reading of the aforesaid amendment, it is lucid that the legislature had consciously widened the ambit of the rule by undertaking two major changes - first, doing away with the requirement that an applicant under Rule 89 must either own the property or hold an interest by virtue of a title, and secondly, expanding the period during which such an interest could have been acquired from 'before the occurrence of the sale' to 'at the time of making the application under Rule 89'. Therefore, the legislature very consciously did away with the requirement of having an applicant under Rule 89 prove his title or absolute right in the property. Presently, it is sufficient if the applicant claims an "interest" in the property sold, either at the time of the auction or at the time of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be made within sixty days from the date of sale. This time-limit also flows from Article 127 of the Limitation Act, 1963. A relaxation of this sixty-day period is only contemplated if, the amount already deposited within this period of sixty days is found to be deficient for the reason that the depositor made a clerical or arithmetical mistake. In such a scenario, the court fixes an additional time within which the depositor shall make good that deficiency. 85. Furthermore, sub-rule (2) goes on to indicate that an application under Rule 89 cannot be made when the same person has already applied under rule 90 for setting aside the sale on the ground of irregularity or fraud. One cannot allege material fraud or irregularity to set-aside the sale while simultaneously also wanting to pay a deposit to set it aside. 86. On a complete reading, what then becomes obvious is that the provision is in the nature of a concession. It is intended to provide the person claiming an interest in the property sold, or a person acting for or on behalf of the persons having such an interest, a last opportunity to receive the property, by getting the auction sale set aside and depositing the amount....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation. - The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule." 89. The aforesaid rule 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. The Amendment Act of 1976 had inserted the words "or the purchaser" under Rule 90 and thereby, clarified that the purchasers in the sale made in execution of a decree could also prefer an application under this rule. 90. Moving further, the rule states that the aforesaid individuals can apply to the executing court to set-aside a sale that has already been conducted on the ground that a "material irregularity or fraud in publishing or conducting it" has occurred. Careful attention must be paid to two aspects herein - First, what constitutes "material" irregularity or fraud would depend on the f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce of the proclamation of sale to be given to the judgment-debtor under Rule 66. The proclamation which is drawn up under sub-rule (2) of Rule 66 must contain several particulars relating to the description of the property. Under clause (e) of sub-rule (2) the court is required to state in the proclamation everything material for a purchaser to know in order to judge of the nature and value of the property. The court has to make an approximate estimate of the market value of the property to be stated in the proclamation. This requirement has been known to cause much trouble and delay. Under the present law, an omission to state the correct market value of the property or an undervaluation of it has been regarded as a material irregularity affecting the sale under Rule 90. In practice, a judgment-debtor who is intent upon postponing the sale of property allows the sale to be held knowing that the particulars as regards the valuation in the proclamation are defective and thereafter makes an application under Rule 90 for setting aside the sale on the ground of a material irregularity in publishing or conducting the sale. These proceedings involve delays which may well be avoided by om....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ause. This provision is presumably made in order to compensate the purchaser. Under Rule 89 the applicant at whose instance the sale is set aside has to deposit 5 per cent of the purchase money for payment to the purchaser. We recommend that a provision similar to that in the Allahabad amendment be inserted in Rule 90. An amendment of the Rule on these lines would, in our opinion, serve to control the filing of frivolous applications." (Emphasis supplied) 94. A reading of the aforesaid would indicate that, an omission to state the correct market value of the property or its undervaluation in the proclamation of sale was earlier considered to constitute a material irregularity in publishing or conducting the sale under Rule 90. Therefore, a cunning judgment-debtor, who was already aware that the particulars in the proclamation of sale as regards the valuation of the property are wrong/defective, could allow the sale to be conducted without raising an issue and thereafter, make an application under Rule 90 with an intent to set-aside the sale and postpone the process. Furthermore, it was also suggested that an allegation regarding a defect that has occurred in the proclamation ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s made by this Court in Desh Bandhu Gupta (supra) gain significance as that was a case involving an execution sale held after the insertion of Order XXI Rule 90(3) CPC and this Court made it clear that, even in the context of a material irregularity under Order XXI Rule 66(2)(a) 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. In a given case, where a judgment debtor is not given notice prior to the sale, as was the situation in Desh Bandhu Gupta (supra), Order XXI Rule 90(3) CPC obviously cannot posit a bar to his raising a ground thereafter. 18. However, on the facts obtaining presently, we are convinced that not only were the judgment debtors in the case on hand put on notice at every stage during the exercises undertaken by the executing Court to reduce the upset price from one unsuccessful sale to the other, they also participated to an extent and then chose to refrain from doing so. Therefore, they do not have the right to claim that they were not put on notice, though they feebly contended to such ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... attachment is to bring the property under the control of the court, and in the case of immovable property one of the requirements is that the order of attachment should be publicly proclaimed. The main object of the proclamation is to give publicity to the fact that the sale of the proclaimed property is in contemplation. The publication of the attachment is thus a step leading up to the proclamation of the sale. The question whether it is necessary to insert a provision to clarify the position on the subject, has been considered. In the draft Report which had been circulated, an Explanation had been proposed to rule 90 to the effect that absence of or defect in attachment shall be regarded as an irregularity under this rule. After some consideration, it has been decided that no such provision need be inserted." (Emphasis supplied) 99. The 27th Report pointed out that, prior to the insertion of the Explanation, several courts were faced with the issue of whether the absence of, or irregularity in the attachment of a property would constitute a defect in the "publication or conduct of the sale". Several decisions gave divergent opinions. Some operated in extremes i.e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ar to what has already been mandated under sub-rule (2) of Rule 90. This Explanation only clarifies and takes forward the intent already evident from Rule 90 and sub-rule (2) thereof. 101. The fourth alternate view endorsed by the 27th Report is the decision of the Madras High Court in K. Swaminatha Iyer v. K.G. Krishnaswami Iyer and Others reported in 1946 SCC OnLine Mad 189, wherein emphasis was placed on "whether substantial injury was caused" due to the absence of a subsisting attachment order for interference to be justified under Rule 90. The relevant observations are thus: "As regards the second contention that the Court had no jurisdiction to sell the house as the attachment had ceased, it is to be observed that this Court has held in a series of cases that a sale of immoveable property without previous attachment is not null and void and that the omission to attach before the sale is only an irregularity which renders the sale liable to be set aside if substantial injury is proved. [ ... ] [ ... ] The position therefore is this: Attachment is a necessary preliminary to a judicial sale, but a sale without attachment is not a nullity. Omission t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under Article 127 of the Limitation Act, 1963, the sale was confirmed by the executing court. In such circumstances, the judgment-debtor had preferred an application under Rule 90 within the prescribed period of limitation for setting aside the sale alleging that he had no knowledge of the sale whatsoever because no process had been served on him at any stage. The notice published in the newspaper during the time of proclamation of sale also deliberately contained incorrect particulars to misguide the judgment-debtor. Upon a detailed consideration of the evidence and the oral testimony of several witnesses, the executing court concluded that no notice was served as prescribed under Rules 22 and 54 respectively, upon the judgment-debtor and since, "substantial injury" was caused to him, the application under Rule 90 must be allowed. The relevant observations are reproduced hereinbelow: "13. [ ... ]It will be noticed that the decree was passed as far back as 1964. The present application was filed in 1968 more than 2 years after dismissal of earlier execution application and, therefore, for further proceedings in pursuance of a fresh execution application, the court was duty....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cuous part of the court-house or that the provisions of sub-rules (1-A) and (2) of Rule 54 of Order 21 of the Code were complied with. Rule 54 is again for safeguarding the right of the decree- holder as well as the judgment-debtor. By the notice the judgment-debtor is put on notice that his property is attached and would be sold unless he pays off to the decree-holder. The trial court observed that this notice is required to be affixed on a conspicuous part of the property. We do not mean that merely if it is not being affixed on the conspicuous part, the sale would be liable to be set aside but we are only emphasising the requirement of it being affixed on a conspicuous part of the property and on court house. All these stages give an opportunity to the judgment-debtor to pay off dues, if any under the decree. The proclamation of sale in this case was thus settled without notice to the judgment-debtor. The judgment-debtor had the right to participate in the proceedings for settlement of terms of proclamation of sale and atleast to know the date of sale. This is necessary since Order 21 Rule 89 of the Code confers again a right on any person having interest in the property sold, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt totally misunderstood the importance and efficacy of notices being served in execution proceedings under Order 21 Rule 22; Order 21 Rule 54(1-A) notice for settlement of terms of proclamation in the presence of the judgment-debtor which led to the finding recorded by it and the finding on fact in the circumstances is totally vitiated." (Emphasis supplied) 104. In Satyanarain Bajoria (supra), this Court has specifically stated that the Explanation to Rule 90 must be understood in the right manner and courts must be cognizant of differentiating between a "mere irregularity or defect" from one that causes "substantial injury". In its only in the latter scenario that one can press an application under Rule 90. 105. Having now understood the scope and intent underlying sub- rule(3) of Rule 90 and the Explanation thereto, it can be said without any cavil of doubt that although any fraud or irregularity in the process of publication of an order of attachment or the lack thereof is broadly covered within the scope of Rule 90, yet an applicant must be able to prove that he has suffered substantial injury as a consequence of it. At the very least, the facts must be able to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er 21, Rule 90 of the CPC is concerned, the reply to this question would come round the fact as to whether such an objection is covered under Order 21, Rule 90 of the CPC or under Section 47 of the CPC Order 21, Rule 90 of the CPC relates to setting aside of a sale on the ground of a material irregularity or fraud in publishing or conducting if. Does the question about the saleability of the property relate to a question of material irregularity or fraud in publishing or conducting a sale? My reply to this question would be in the negative. There are a number of authorities to the effect that where the decree is against the asset of a deceased debtor, an objection by the judgment-debtor that the property belongs to him personally is one covered under Section 47 of the CPC. Such a person cannot file a regular suit or raise such an objection under Order 21, Rule 58 of the CPC. The question as to whether the property was saleable in execution of the decree is neither a question of fraud nor a question of material irregularity. In the instant case, the only question was as to whether the property was the asset of the deceased debtor against whose asset the decree has been passed or it ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al irregularity or fraud and in the absence of any evidence or even an allegation in regard thereto in the petition under Order 21 Rule 90, question of introduction of the concept of no saleable interest or another opportunity to the judgment- debtor does not and cannot arise." (Emphasis supplied) 110. One of the principal contentions of the respondent nos. 1 and 2 respectively is that, since the suit property had been sold to them by one of the judgment-debtors, prior to the attachment of the property by the Executing Court, the said property could not have been attached and consequently, made a subject-matter in the execution proceedings for the satisfaction of the original decree. This is because, according to them, the judgement-debtor had ceased to be the lawful title-holder of the suit property on the date of the order of attachment i.e., on 08.10.1985 owing to the transfer of the suit property in their favour by way of the two sale deeds dated 13.05.1985 and 24.06.1985 respectively. It is to be noted that the respondent nos. 1 and 2 respectively, wish to set-aside the sale conducted by the Executing Court only insofar their share is concerned i.e., only as regards a po....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of sale could also very well be brought within the scope of Rule 90. 114. Let us now ascertain whether in the entire process of execution there was any other irregularity, for example, whether the respondent nos. 1 and 2 were entitled to receive some notice which was not served upon them. The notices under Rules 22 and 66 respectively, only pertain either to the judgment-debtor alone (or the persons against whom execution is applied for) or to the judgment-debtor and the decree-holder. On the other hand, the notices mentioned under Rules 54 (pertaining to order of attachment) and 67 (pertaining to order of proclamation of sale) respectively, are required to be proclaimed by the beat of drum or any other customary mode at some place on or adjacent to the concerned property. Further, a copy of such order is to be affixed on a conspicuous part of the property, courthouse and the office of the Collector/Gram Panchayat. 115. It is not the case of the respondent nos. 1 and 2 respectively, that the aforesaid Rules 54 and 67 respectively were not complied with or that there were any irregularities as regards the issuance and publishing of notices under these rules. They have not s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....come absolute: Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection. (2) Where such application is made and allowed, and where, in the case of an application-under rule 89, the deposit required by that rule is made within sixty days from the date of sale, or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby: Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002. (3) No suit to set aside ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntioned therein stand fulfilled. When the sale becomes absolute, the executing court proceeds to grant a certificate under Rule 94, specifying the particulars of the property and the name of the purchaser. 123. On the contrary, under Rule 92(2), where an application under Rules 89, 90, or 91 respectively, as the case may be, is made within the prescribed period of limitation and allowed, the court must proceed to pass an order setting aside the sale. b. The bar to a separate suit envisaged under sub-rule (3) of Rule 92. 124. Rule 93(3) prohibits any person against whom an order under sub- rule (1) or sub-rule (2) respectively has been passed, from instituting a separate suit to set-aside that order. Thus, what Rule 92(3) seeks to achieve is to prevent the institution of separate suit by those persons who are already bound by the order of confirmation/ setting aside made under sub-rule (1) or (2) of Rule 92 respectively. They simply must not be allowed to rehash their grievance by way of a separate suit. The object is to accord some finality to the order passed under sub-rule (1) of Rule 92 (subject to an appeal against the order disallowing an application under 89, 90 or 9....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mbodies the well-entrenched principle of res judicata. However, one must particularly look closely into how or why the application under Rule 90 was disallowed to contextualize when a separate suit filed after the confirmation of the sale, could be said to be maintainable. Let us look at a few illustrations in this regard: i. Illustration 1: Say, the application under Rule 90 was regarding certain alleged irregularities or fraud in publishing or conducting the sale which did not cause substantial injury to the applicant and for this reason, his application was disallowed. In such a scenario, the bar under sub-rule (3) of Rule 93 would apply to a suit which is brought by the same applicant to set-aside the order confirming the sale made under Rule 92, upon the same or similar grounds. ii. Illustration 2: Say, the application under Rule 90 was dismissed for the reason that, although the alleged irregularities or fraud in publishing or conducting the sale may have caused substantial injury to the applicant yet it was not maintainable because it was not preferred within the prescribed period of limitation i.e., it was preferred after the sale was confirmed. In such a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te of the sale" and not from the " date of knowledge of the sale" or "the date of knowledge of the grounds covered under those rules". The decision to have the limitation period tethered to the date of sale itself and not making it dependent on the knowledge of any prospective applicant, seems to have been conscious on part of the legislature. It was designed to ensure that the execution proceedings do not take forever to grant the decree-holder the amount that he is entitled to and that they also not make the auction-purchaser endlessly wait for the sale certificate to be issued to him. Therefore, it would be of no avail for one to say that they didn't have the requisite knowledge to file an application under Rules 89, 90 or 91 respectively and that they must be allowed to institute a separate suit for the same grounds envisaged under those rules. This plea is especially rampant in relation to grounds envisaged under Rule 90 and the same must be curbed. However, we must emphasize that if a separate suit is allowed for grounds which could be raised under Rule 90, this would, in effect, render the limitation period laid out under Article 127, meaningless. 131. In addition to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tions which were raised in the suit fell within the ambit of Rule 90 and therefore, a suit in that regard would be barred. The relevant observations are thus: "From paragraph 9 of the plaint it appears that the right of redemption was sold on the 19th of April, 1935 and that the sale was confirmed within rule 92 of Order 21 of the Code of Civil Procedure on the 14th of May, 1935. In paragraphs Nos. 10, 11 and 12 of the plaint it is stated that there was fraud in the matter of publishing the sale. Clearly the objections on which the auction sale is sought to be set aside, fall within rule 90 of Order 21 of the Code of Civil Procedure. If so, rule 92(3) of Order 21 bars the suit. [ ... ] Article 166 of the Limitation Act provides that the period of limitation for an application to set aside an auction-sale is 30 days from the date of the sale. Now, the sale which is sought to be set aside took place on the 19th of April, 1935, while the suit was brought on the 27th of March, 1946. [ ... ]" (Emphasis supplied) 133. To the same effect, is the decision of the Bombay High Court in Nagindas Chhotalal v. Kunversha Hormasji and Others reported in 1946 SCC On....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has been filed under Order 21 Rule 89, 90 or 91, same has been disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute, and no suit shall lie as per the mandate of sub-rule (3) of Rule 92 of Order 21 CPC against whom such an order is made. The order confirming the sale may be made either where no application is made at all to set aside the sale or where an application is made and disallowed may be that it is dismissed for default. No suit shall lie in either case to set aside the order confirming the sale. The refusal to set aside a sale is an order appealable. In case the court has set aside or refused to set aside a sale that would include a case where an application under Order 21 Rule 89, 90 or 91 has been dismissed for default. 25. In the instant case admittedly an application was filed by the original plaintiff under Order 21 Rule 90 read with Section 47, on the ground that he was the owner of the land in question purchased by a sale deed dated 9-11-1974 for a sum of Rs 10,000 and was placed in possession. He was not aware of the court sale. There was no beat of drums before the auction was held. He was not aware of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a separate suit on the ground of the sale as a whole being rendered a nullity (as understood in the present narrow manner) would be the decision of the Bombay High Court in Smt. Savitri Poto Gaonkar & Ors. v. Jaganath Cau Bhomkar & Ors. reported in 2005 SCC OnLine Bom 904. Therein, certain properties which were neither the subject-matter of the execution application or the attachment nor the proclamation of sale, in fact a property which was not auctioned at all in reality, was included, for the first time, in the certificate of sale issued at the time of the sale confirmation under Rule 92. In other words, the executing court did not have any jurisdiction to sell such property at all and the confirmation of sale against it was void and non-est. The question was whether a suit as regards the setting-aside of auction vis-à-vis the said property would be barred due to the operation of sub-rule (3) of Rule 92. Holding the suit to be maintainable, it was observed as thus: "21. [ ... ] Both the lower courts, not having followed the said procedure, in my view, have committed a grave error in deciding the suit pertaining to the property described in 2(f) on the preliminar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and, on that ground also, the finding of both the courts below that the suit is not maintainable in respect of the property described in 2(f) is clearly illegal and the said finding will have to be set aside, and the matter will have to be remanded back to the trial court for deciding the maintainability of the suit vis-a-vis the property described in 2(f) along with other issues which have arisen in the matter." (Emphasis supplied) 137. In a situation akin to that of Savitri Poto Gaonkar (supra), where the entire sale is alleged to have been without jurisdiction and therefore, a nullity or non-est, if the persons seeking to assail the sale are either the parties themselves or their representatives, the appropriate course of action would be to file an application under Section 47 CPC before the executing court itself, rather than preferring a separate suit. 138. This is because several decisions have, time and again, emphasized that the recourse under Section 47 CPC could be availed in a situation where the execution proceedings were itself without jurisdiction and a nullity. Therefore, in holding a separate suit maintainable, along with ensuring that it is not hit by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stions which arise between (a) the parties to the original suit in which the decree was passed, or (b) their representatives, which relate to the execution, discharge or satisfaction of the decree, shall be determined by the executing court and not by way of a separate suit. Therefore, Section 47 also envisages a bar to the filing of a separate suit under certain circumstances. Our attempt is to understand how the bar envisaged under Section 47 interacts with the bar envisaged under Rules 92(3) of Order XXI CPC; whether they are one and the same or whether there is a nuanced distinction between the two? 142. In our opinion, there is indeed a difference, although admittedly small, between the bar to the filing of a separate suit as mentioned under the aforesaid two provisions. On the one hand, Rule 92(3) states that no suit to set aside an order made under Rule 92 shall be filed by a person against whom such an order is made. Meaning thereby that, the person must, first, somehow be prevented by an order made under Rule 92 from filing a separate suit. We have explained in sufficient detail as to when and how the bar under Rule 92(3) would apply to a separate suit. On the other han....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an examination of the same, the executing court is of the opinion that the application under Section 47 CPC directly relates to a specific rule i.e., either Rules 89, 90 or 91 respectively, then the section 47 application would be treated as an application under Rules 89, 90 or 91 respectively as the case may be, and it will be decided according to the law settled under those rules. This settled law would then have the consequence of such a Section 47 application being dismissed, for the reason that the limitation period under Rules 89, 90 or 91 respectively has long lapsed. 145. To put it simply, one cannot overcome the limitation period prescribed under Rules 89, 90 or 91 respectively by filing a simpliciter application under Section 47 and demanding that the same be allowed. Only in situations wherein a party to the original suit or their representative wants to assail the auction sale for the reason that the entire auction sale was without jurisdiction and a nullity, can a simpliciter application under Section 47 be allowed after the order of confirmation of sale has been passed under Rule 92. As we have already elaborated previously, the grounds on which the execution sale ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cle were amongst the heirs to her father's estate. The uncle, upon being appointed as a receiver by the High Court in the partition suit, had leased some properties belonging to the estate in favour of the respondent no. 1 and had obtained an advance for the same. Before the partition suit came to be decreed, the respondent no. 1 filed a suit for recovery of the advance amount paid by him to the uncle. This money suit filed against the uncle was decreed with a direction that such advance amount be adjusted from the uncle's share to the deceased estate upon partition. However, the respondent no. 1, in execution of his money decree, got attached and sold the properties which were allotted to the plaintiff in the partition suit. All the while, the plaintiff was kept in the dark about the said execution proceedings. Thus, the plaintiff had instituted a separate suit for possession by stating that the sale was a nullity and not binding on her. 149. In Ameena Bi (supra), amongst several questions, the question whether the money decree was the personal liability of the uncle or a liability against the estate as a whole, was crucial to the issue of whether the separate suit was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plied) 150. In the present case, Mr. Vikas Singh would be right in submitting that the respondent nos. 1 and 2 respectively, have been identified as being "representatives" of the judgment-debtors by the impugned decision owing to them being pendente lite transferees of the judgment-debtor. In other words, the respondent nos. 1 and 2 respectively, had stepped into the shoes of their vendor who was a judgment-debtor. The relevant observations by the High Court are reproduced as follows: "Let us now examine as to whether plaintiffs are representatives of the Judgment Debtor or not. Section 47 of the Code of Civil Procedure lays down that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court, executing the decree and not by a separate suit. The subsequent purchasers after the decree passed are representative of the Judgment Debtor. Plaintiffs have stepped into the shoes of Judgment Debtors. Counsel for the plaintiffs-respondent is not correct in contending that the plaintiffs are not representatives of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d under Rule 92(4) as well. 155. With particular reference to Rule 92, the 54th Report of the Law Commission of India, had recommended the insertion of sub-rules (4) and (5) respectively, to address a situation where a sale conducted by the executing court is subsequently found to be a nullity for want of title, more particularly, where the defect in title is discovered after confirmation of the sale in a suit instituted by a "third party". The objective of sub-rule (5) is to reimburse the auction purchaser, and the liability for such reimbursement is placed upon the decree-holder because it was at his instance that the sale was held. The Report reads thus :- "21.48-D. Recommendation. - Whatever be the correct view on the existing language, it appears to us that something should be done to improve the position. No doubt, to permit the auction-purchaser to sue for refund from the decree-holder, is to add to the troubles of the decree-holder and thus to delay execution. But that seems to be the only possible alternative. As between the decree-holder and the auction- purchaser, if someone has to suffer, the former should suffer. It may not be feasible for the cour....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the auction-purchaser be entitled to a refund of his purchase money and the execution proceedings would be revived at the stage at which the sale was ordered, unless otherwise directed. While the refund of money to the auction-purchaser is mandatory, the revival of the execution proceedings is subject to any other direction from the court. This recommendation is what has been adopted verbatim and have become Rules 92(4) and 92(5) respectively, as we see them today. 157. We may, with a view to obviate any confusion, clarify that Rule 92(4) does not create or confer a right to challenge the judgment debtor's title. It only prescribes a mandatory procedural requirement i.e., where a third party files a suit asserting his title over the property, he must necessarily implead the auction- purchaser, the decree-holder, and the judgment-debtor as parties to the suit. The sub-rule is couched in mandatory terms because once the sale has attained finality under Rule 92(1), any decree passed in a separate suit without the presence of all the affected parties would be ineffective. To put it simply, Rule 94(4) is not a jurisdiction-conferring provision; it merely lays down the condition....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w to demarcate when such a right of a third party to file a separate suit would arise with respect to the property which is the subject matter of execution proceedings, we find it necessary to briefly discuss the scheme underlying Rule 58 of Order XXI CPC which reads as follows: "58. Adjudication of claims to or objections to attachment of, property. - (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such, claim or objection shall be entertained - (a) where, before the claim is preferred or objection is made, the property attached has already been sold; or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld before the claim is made or the objection is preferred under Rule 58, or (b) where the executing court considers that the claim or objection preferred was designedly or unnecessarily delayed. The use of the word "shall" in the proviso indicates that at least insofar as (a) is concerned i.e., when the attached property has already been sold, the executing court has to mandatorily dismiss the application made under Section 58. When the executing court disallows an application under Rule 58 by invoking clause (a) of the proviso to Rule 58(1), Rule 58(5) comes into the picture. 163. Rule 58(5) states that when a claim or an objection is not entertained owing to the mandatory nature of clause (a) of the proviso to Rule 58(1), then such a party against whom this order under Rule 58 was made, may institute a separate suit to establish the right which he claims to the property that is the subject matter of attachment in the execution proceedings. However, during the period in which such a separate suit, if any, is being decided by the court of competent jurisdiction, the order refusing to entertain the claim or objection made under Rule 58 would be conclusive insofar as the progress ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itute a suit for a third party arises from the moment the order of sale has been passed and he needn't wait until the sale has been confirmed. Therefore, in that period between the order of sale and the order confirming sale, which can be 60 days or more (as we had stated previously), any third party would be able to file a separate suit for a claim or objection which he could otherwise agitate under Rule 58. 167. Another possible way of interpreting the aforesaid phrase would be to understand it to mean an order of confirmation of sale as referred to in Rule 92(1). Reading it in such a manner would mean that the option of filing a suit would be activated or, to be precise, re-activated for a third party, the moment the sale has been confirmed under Rule 92(1). The benefit of this view would be that, during the period between the order of sale and the order confirming the sale, the third party asserting that the judgment-debtor does not have title to the attached property could still move the executing court in that regard under Rule 58. This view would also be in consonance with the plain reading of Rule 92(4) which states that when a "third party" challenges the judgment-d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1 Rule 58. The stress is thus on the stage at which the objection could be raised (or the time when the objection is raised). These concurrent orders are now in challenge before us. -xxx- 16. [ ... ] It is our considered opinion that in this case the sale was not confirmed and that made a substantial difference. The word "sold" in clause (a) of the proviso to Rule 58 has to be read meaning thereby a complete sale including the confirmation of the auction. That not having taken place, it cannot be said that the objection by the appellant was ill- founded or untenable as has been held by the High Court and the trial court. (Emphasis supplied) 172. Therefore, the decision in Kancherla Lakshminarayana (supra) supports the view that the words "sold" under Rule 58(1) proviso (a) must be understood to mean confirmation of sale under Rule 92(1). This decision is key in clarifying the "time factor" in challenging the sale i.e., what remedy would be available to a third party at what time. 173. Having arrived at the aforesaid interpretation of the word "sold" under Rule 58(1) proviso (a) and having held that the underlying suit referred to in Rule 58(5) and Rule 92....
X X X X Extracts X X X X
X X X X Extracts X X X X
....proceedings and have not had the opportunity to avail any remedy both in the original suit and in the execution proceedings, must be given the option of filing a separate suit. 178. Such an interpretation of the term "third party" would also naturally refer to those parties who are not covered under Section 47 CPC. In other words, parties to the original proceedings in which the decree was passed and their representatives could never fall under the aforesaid interpretation of the term "third party". As a consequence, synergy would also be established between Section 47 CPC and Rule 92(4), especially the words "and not by a separate suit" occurring in Section 47. The third parties referred to under Rule 92(4) could never be said to comprise those persons who could prefer an application under Section 47 CPC. To put it simply, the suit referred to in Rule 92(4) cannot be resorted to by someone to overcome the bar to a suit under Section 47 CPC for the reason that such persons falling within the scope of Section 47 CPC could never be "third parties". 179. To recapitulate, once the sale is confirmed, if a party seeks to set the sale aside on grounds that they could have taken unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pellants, the decree holder-bank, and the judgment-debtors respectively yet owing to the reason that they are not third parties, their suit could not be said to be maintainable. IV. Whether the respondent nos. 1 and 2 respectively could have obtained any relief under Rule 99 of Order XXI CPC and in the absence of availing such remedy, could their suit be said to be not maintainable? 181. It was submitted on behalf of the appellants that the respondent nos. 1 and 2 respectively could have raised their objections regarding the alleged irregularities in the auction sale during the execution proceedings itself by filing an application under Rule 99 r/w Rule 101 of Order XXI CPC. Further, it was submitted that in preferring not to do so, the filing of a separate suit must also be disallowed. We shall now discuss whether the respondent nos. 1 and 2 respectively could have filed such an application. 182. At the outset, we must clarify that any irregularity or fraud in the publishing or conducting of the auction sale cannot be raised even in a proceeding under Rule 99, as such grounds lie within the exclusive domain of the application under Rule 90. However, in an application unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....son. Explanation. - In this rule, "transfer" includes a transfer by operation of law." a. Essential ingredients for the invocation of Rule 99 185. On a reading of the aforesaid, it can be seen that the necessary requirements for the purpose of invoking Rule 99 of Order XXI are as follows: i. The person making an application, i.e., the applicant under Rule 99, must be 'any person' other than the judgment debtor; ii. Such an applicant must be 'dispossessed' from the immovable property; iii. The dispossession of such a person must be caused by: a. the holder of a decree for the possession of such an immovable property; or b. the purchaser, in case the immovable property is sold pursuant to the execution of the decree. 186. The condition precedent for making an application under Rule 99 maintainable is that the person preferring such an application must be dispossessed from the immovable property, and that he must be someone other than the judgment debtor. This dispossession must occur as a direct consequence of or in the course of execution of said original decree. Thus, an applicant under Rule 99 needs to establish....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d) 188. In H. Seshadri v. K.R. Natarajan and Another reported in (2003) 10 SCC 449, this Court was concerned with an application under Rule 99 of Order XXI CPC filed by a tenant who claimed a title independent to that of the judgment-debtor and was dispossessed in the course of the execution of an eviction decree. In holding that such a person can maintain an application under Rule 99, it was observed thus: "13. For the purpose of considering an application under Order 21 Rules 99 and 100 of the Code of Civil Procedure what was required to be considered was as to whether the applicant herein claimed a right independent of the judgment-debtor or not.[ ... ]" (Emphasis supplied) 189. In order to better understand who can maintain an application under Rule 99, the words "any person" other than the judgment- debtor used therein must be further clarified. This is more so because the decision in Brahmdeo Chaudhary (supra) has employed the phrase "a stranger to the decree" as analogous to the words "any person other than the judgment debtor" 190. A "stranger to the decree" must necessarily be someone other than the person who is the judgment-debtor and of course, othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s instituted, would not be able to avail the remedy available under both Rules 97 and 99 respectively, by way of an order under Rules 98 and 100 respectively. There was no reason for Rule 102 to explicitly exclude such transferees pendente lite if the words "any person other than the judgment debtor" employed in Rule 99 had not already included them. 194. The net effect of the phrase " any person other than the judgment debtor" used in Rule 99 and the bar under Rule 102 is that, it is only the judgment-debtors themselves or the pendente lite transferees of the judgment debtor who would not be able to take the cumulative benefit of Rules 99 and 100 of Order XXI CPC in the event of their dispossession. A person who has bought the property from the judgment-debtor but before the institution of the suit i.e., a bona fide purchaser for value who is not hit by the doctrine of lis pendens, would then be able to prefer an application under Rule 99 and may obtain an order under Rule 100 in the event of his dispossession by the auction-purchaser, without the bar under Rule 102 operating against him. 195. The decision of this Court in Ashan Devi and Another v. Phulwasi Devi and Others r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the nature of the property involved. (Emphasis supplied) 196. Several decisions have laid down that the dispossession of the applicant who was in possession of the suit property is a sine-qua non for the maintainability of an application under Rule 99 of Order XXI CPC. Without referring to all those decisions in detail, we refer with profit to the decision of this Court in Sriram Housing Finance and Investment India Limited v. Omesh Mishra Memorial Charitable Trust reported in (2022) 15 SCC 176, wherein it was held that since the appellant continued to remain in possession, the application under Rule 99 could not have been entertained. The relevant observations are as thus: "24. [ ... ] Further, Rule 99 pertains to making a complaint to the Court against "dispossession" of the immovable property by the person in "possession" of the property by the holder of a decree or purchaser thereof. 25. It is factually not in dispute that the appellant purchased the said property from Mr Yogesh Mishra vide sale deed dated 12-4-2004 and has been in vacant and physical possession of the property since then. Had it been the case that the appellant was dispossessed by the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o be in possession of the suit land. In the alternative, if for any reason, the plaintiffs are proved to have been dispossessed from the suit land, they are entitled to a decree for possession of the suit land." (Emphasis supplied) 198. We have also had the benefit of looking into the 'Possession Mauja' which records that the possession was successfully handed over to the appellants in execution of the warrant of possession issued by the executing court on 24.06.1989. The relevant portions of the same read thus: "Thereafter, I called the opposite party namely Sh. Sumer Singh and Smt. Harpyari through Chowkidar who flatly refused to come at the spot. Now after reaching at the spot, the above said land has been inspected and there is small crops of Jawar and Arhad over the land bearing Rect. No. 30, Killa Nos. 10, 11/1, 11/3, 20/1, 20/2;,Rect. No. 31, Killa Nos. 4/2, 7/2, 14/1, 14/2, which has not been possessed by opposite party. The said land has been owned and possessed by the applicant whereas the remaining land is lying vacant. Therefore, the possession of above said entire land was given to the applicant by using Phawra. The aforesaid fact of completion o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntainable. b. The scheme underlying Rules 100 to 104 respectively and the availability of the remedy of filing a separate suit as an alternative to an application under Rule 99 of Order XXI CPC 202. There are two possible views that one can take with regard to the aforesaid - i.e., First, subscribe to the interpretation that the scheme underlying Rules 99 to 102 respectively only bar the filing of a separate suit when an application under Rule 99 has already been preferred before the executing court. To put it simply, Rule 101 would be interpreted quite literally herein. This would imply that a person dispossessed in the course of execution of a decree, either by the decree-holder or the auction purchaser, has an option to either (a) to prefer an application under Rule 99; or (b) to file a separate suit. Therefore, it is only when one of these options are already adopted that the other would be barred. Several High Courts seem to have adopted this approach. 203. Secondly, on the other hand, one could also adopt the view that, even in a scenario where the dispossessed person has not preferred an application under Rule 99 and has instead, alternatively filed a separate suit,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. 101. Bona fide claimant to be restored to possession - Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property. 102. Rules not applicable to transferee lite pendente - Nothing in rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immoveable property by a person to whom the judgment- debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. 103. Orders conclusive subject to regular suit - Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive." 205. We also....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... claim proceedings or obstruction proceedings should be finally determined by the execution court, and that where they are so determined, there should be no right of suit. This recommendation has been made with a view to eliminating delay in execution proceedings. Unfortunately, we have no statistics to indicate in what percentage of cases a suit is filed under rule 63 or rule 103. We are, however, in agreement with the recommendation in the Fourteenth Report, which is based upon certain evidence recorded by the Commission. -xxx- 45. Other changes suggested in Order 21 to avoid delay. Apart from these principal amendment, we have suggested some other amendments in Order XXI, which in our opinion, will expedite execution proceedings." (Emphasis supplied) 207. Although the aforesaid observations allude only to the mischief which was being caused under the old rule 97, where undue obstruction would be caused either by the judgment-debtor or by persons colluding with him and thereafter, the same persons would resort to the filing a separate suit under the old Rule 103 in order to delay giving finality to the proceedings, yet it must be remembered that under the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 97, have to be adjudicated by the executing court itself and not left to be decided by way of a fresh suit. 8. The word "conclusive" appearing in Rule 103 indicates that it creates a presumption in favour of facts relating to rights to property as well as legality of the matter stated in the order. Such an order passed under Rule 98 is not subject to any further enquiry in any other proceeding, except by bringing a fresh suit under Rule 103. Thus, in view of the conclusiveness attached to the order passed by the executing court on an application filed under Rule 97, which is subject to result of a suit, if any, filed under Rule 103, is not assailable in any other proceedings. In case no suit is filed under Rule 103, the order passed under Rule 98 is final between the parties.[ ... ]" (Emphasis supplied) 209. Hence, the filing of a separate suit, even under the old regime, was available as a remedy only because of the inability of the executing court to look into the questions of right, title or interest of the competing parties. So, in that sense, there was a distinct and very specific reason why the remedy of filing a separate suit was kept open. When the legislatu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution. 9. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice. The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like (sic) in the judicial process woul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rated that rules 97 to 103 respectively is a self-contained code which empowers the executing court to adjudicate the entire lis and any order passed would be deemed to be a decree. The relevant observations are thus: "20. The submission of the learned counsel for the appellants is that if the scheme underlying the said Rules is appositely appreciated, it is clear as crystal that the legislature in order to avoid multiplicity of proceedings has empowered the executing court to conduct necessary enquiry and adjudicate by permitting the parties to adduce evidence, both oral and documentary, and to determine the right, title and interest of the parties and, therefore, such an order has been given the status of a decree. As has been put forth by him, a proceeding in terms of Rule 97 or Rule 99 is in the nature of a suit and the adjudication is similar to that of a suit [ ... ] -xxx- 26. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut to relegate itself to the long-drawn-out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and the other person claiming title on their own right to get it adjudicated in the very execution proceedings. 216. This Court in N.S.S. Narayana Sarma and Others v. Goldstone Exports (P) Ltd. and Others reported in (2002) 1 SCC 662 also observed that, by way of the Amendment Act of 1976, the legislature has vested wide powers in the executing court to deal with "all issues" relating to the suit property. This, in the opinion of the court, may have been brought to allay the apprehension in the minds of the litigant public that it takes years before the decree-holder can enjoy the fruits of the decree. The relevant observations are thus: "15. [ ... ] From the provisions in these Rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with "all issues" relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... requirement of filing of fresh suit for adjudication of disputes as mentioned above.[ ... ]" (Emphasis supplied) 218. In addition to all the decisions discussed above, a three-judge bench of this Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust and Another reported in (1998) 3 SCC 723 discussed the scope of adjudication that is envisioned under Rule 101 and stated that the executing court would be obligated to decide such questions that (a) have legally arisen between the parties and (b) are relevant for consideration and determination between the parties. The observations are thus: 12. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resister raised it. The questions which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le 102 of Order XXI CPC. A recent decision of this Court in Tahir V. Isani v. Madan Waman Chodankar reported in 2020 SCC OnLine SC 1962 observed that the bar under Rule 102 applies only to a person to whom the judgment-debtor has transferred the suit property pendente lite. In other words, if the person has received the property from anyone other than the judgment-debtor, even pendente lite, then he would be entitled to the benefit under Rules 98 and 100 respectively. It was also stated that the object underlying Rule 102 is to protect the interest of the decree-holder against the attempts of unscrupulous judgment-debtors and their subsequent transferees who deprive the decree-holders from taking any benefit of the decree passed in their favour. In delineating the ingredients that are required to be fulfilled for the application of Rule 102, it was stated that it is absolutely necessary for the transfer to have been made by the judgment-debtor after the institution of the original suit in which the decree was passed. Only then, can the protection afforded under Rules 97 to 101 respectively, be denied. The relevant observations are thus: "9. [ ... ] In a suit pending betwee....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has received the property from person other than the judgment-debtor, such person is competent to gain the benefit of Rules 97 to 101 of Order XXI. In fact, he is entitled to such benefit even if he had been transferred the immovable property pendente lite, i.e. during the pendency of the suit, in which the decree was passed." (Emphasis supplied) 223. Therefore, the bar under Rule 102 must be read correctly; it is very specific and must not be unduly expanded. 224. However, what must be carefully noticed is that Rule 102 does not say that such a transferee pendente lite of the judgment-debtor would not be entitled to even file an application under Rules 97 or 99 respectively, as the case may be. It reads that "Nothing in rules 98 and 100 shall apply". This leads us to arrive at the interference that it is not the filing of the application under Rules 97 or 99 respectively, per say, which is barred under Rule 102. The bar under Rule 102 is with regard to the orders which would come to be passed as a consequence of the adjudication of the applications under Rules 97 or 99, as the case may be. Therefore, it is a bar placed on the executing court's power to afford any rel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....." (Emphasis supplied) 227. One might question, what is the reason behind adjudicating an application under Rules 97 or 99 respectively, if the passing of an order under Rules 98 and 100 respectively is anyway barred? The simple reason would be that some judicial forum must arrive at the finding that the person(s) in question is a transferee pendente lite of the judgment-debtor so as to determine his right, title or interest to the suit property or the lack thereof. 228. Again, it is with this background that one must look at the ratio of the decision of this Court in Renjith K.G. and Others v. Sheeba reported in 2024 SCC OnLine SC 2821, authored by one of us, R. Mahadevan, J. Therein, it was stated that an applicant under Rule 99, who is a stranger to the decree, can very well adjudicate his claim of right, title and interest in the decretal property. It was further held that this term i.e., "stranger to the decree" would include a pendente lite transferee who has not been impleaded in the original suit. The relevant observations are thus: "13. It was the specific plea of the appellants that the predecessor of the respondents being a pendente lite transferee, is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... original suit and a stranger to the decree yet, since he derives his right through a transfer made by judgment-debtor during the course of the suit proceedings, ultimately, the law would not look at him favorably even under an application under Rule 99. This is reflected in Rule 102. 230. Having said so, the conclusion reached in Renjith (supra) would still hold good because, in light of the decision in Silverline Forum (supra), the application under Rule 99 could still be filed by such a person for the adjudication of his right, title or interest since he would be a stranger to the decree. It is just that the adjudication of the same would then be limited to whether he would be a transferee pendente lite of the judgment-debtor or not in order to determine whether the bar envisaged under Rule 102 would apply to him. Therein, the matter was ultimately remanded to the trial court leaving all questions under Rule 99 read with 101 open for fresh consideration. Therefore, it was implicit that the trial was to proceed in light of the decision given in Silverline Forum (supra) and if the auction-purchaser or the decree-holder raised a preliminary issue that the applicant is a transfer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property." 233. Rule 104 begins with the phrase "every order made under rule 101 or rule 103". This, in a way, substantiates the discussion made by us hereinabove that the determination of the questions referred to in Rule 101 may not always lead to an order being passed under Rules 98 or 100 respectively and a classic example of this scenario would be determining these questions in relation to a pendente lite transferee of a judgment-debtor. In other words, sometimes an order may be passed under rule 101 and it may not be followed with an order under rules 98 or 100. This is probably why Rule 104 brings both the order under Rule 101 and those under Rule 103 (which collectively includes orders under Rules 98 or 100) respectively, within its ambit. 234. Rule 104 then proceeds to say that an order under both Rule 101 and 103 respectively shall be subject to the result of any suit that may be pending on the date of the commencement of the proceeding in which such an order is made, i.e., the institution of an application under....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the auction-purchaser to file an application under Rule 99. Before any cause of action to file an application under Rule 97 or 99 arises, he may choose to file a separate suit, if he wishes to, in accordance with Rule 92(4). However, once there arises an opportunity for such third party possessor to obtain appropriate redressal of his grievances through an application under Rule 97 or Rule 99, he must not be allowed to file a separate suit. 239. We say so also because we are cognizant of the differing views as regards whether a third party can make an application under Rule 97 taken by the decisions of this Court in Brahmdeo Choudhary (supra) and Sriram Housing (supra) respectively. Another coordinate bench of this Court in P. Sumathi v. K. Krishna Gounder & Ors in SLP(C) No. 14092 of 2025 has already taken seisin of such conflicting views while issuing notice vide its order dated 16.05.2025. Without delving into which interpretation of Rule 97 may be right, we only wish to point out that in case the view taken by Sriram Housing (supra) is held to be the correct view, then the interests of justice would demand that a third party in possession who obtains knowledge of the confir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oth the option of filing a separate suit or an application under Rule 99 becomes unavailable upon the lapse of the limitation period as prescribed under Article 128 of the Limitation Act, 1963. Such a treatment, in our opinion, would not be onerous. Let us look at Scenario 1 to substantiate this rationale better. As we have already explained previously, the progress of the execution proceedings, at least between the order of sale and the order of confirmation of sale is continuous and starts running from the date of the order of sale. In other words, the cause of action to file an application under Rule 89, 90 or 91 is not dependent on when a prospective applicant would acquire the knowledge of the order of sale. The mere fact that a person acquired knowledge of his property being attached and sold, after the confirmation of the sale under Rule 92(1), would not turn the clock back in his favour and make available the option to file an application under Rules 89, 90 or 91 respectively. Therefore, under Scenario 1, the third party's option to file separate suit after the sale is confirmed (albeit on narrower grounds i.e., that the sale was a nullity etc.) would be dependent on wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 100, Rule 92(5) or at least its underlying intent must be carried forward by the executing court such that the auction-purchaser, against whom the order under Rule 100 would operate is able to take back the purchase-money he paid at the auction-sale, with or without interest. This is because after the right, title or interest to the property is decided in favour of the dispossessed applicant under Rule 99, an auction-purchaser would be subjected to a similar, if not an identical hardship insofar as getting back his purchase-money is concerned. Especially having elaborated that the jurisdiction afforded to the executing court under Rule 101 is wide and all questions relevant to the adjudication of the dispute would be decided just as it would be in a separate suit and the order passed would be deemed to be a decree, such a measure is all the more necessary to alleviate the concerns of the auction-purchaser. 245. However, one impediment in seamlessly carrying the intent of the Rule 92(5) forward, would be the potential non-impleadment of the decree-holder in the proceedings under Rule 99. In a situation where the auction-purchaser is the one who is dispossessing the third party, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r was one of the judgment-debtors, would have disentitled them to the aforesaid reliefs. In short, since the relief(s) which they would be entitled to could only include the recovery of money, irrespective of the provision they invoked, their prayer for the reliefs of declaration of title and/or possession could not have been granted to them. VI. The decision of this Court in T. Vijendradas (supra). 248. Ms. Aparajita Singh, in her submissions, placed heavy reliance on the decision of this Court in T. Vijendradas (supra) and stated that the said decision would squarely cover the issue as regards the maintainability of the suit instituted by the respondent nos. 1 and 2 respectively. 249. In T. Vijendradas (supra), this Court was directly concerned with the interpretation of Rule 92(4) of Order XXI CPC. Therein, one 'V' who was the owner of the suit property had transferred his right, title and interest in the property in favour of the plaintiff. The factum of this sale was not intimated to the Municipal authorities and the plaintiff's name was also not mutated in the revenue records. Property tax had not been paid in respect of the said property for a period of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd without jurisdiction, having been passed without impleading her as a party despite the fact that the property had already been transferred in her favour before the institution of the suit by the Municipality. In other words, she was not a pendente lite transferee of the judgment-debtor-'V' but was a bona fide purchaser for value who was not hit by the doctrine of lis pendens. Therefore, not having an opportunity to assert her title either in the original suit or in an application under Rule 58 of Order XXI CPC for the want of knowledge, she was a "third party" as indicated under Rule 92(4). Being neither a party to the original suit, nor a representative of the judgment-debtor-'V', her suit would not be hit by Section 47 CPC either. 252. We are aware that the plaintiff therein seems to have raised several contentions as regards the reduction of the upset price, non-service of notice etc. as well. However, for reasons that we have elaborated upon in the preceding parts of this judgment, those are grounds that could only be raised in an application under Rule 90 within the prescribed limitation period under Article 127 of the Limitation Act, 1963. Therefore, eve....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y proceed against the judgment-debtor for realisation of the decretal amount. In this case, the plaintiff-respondents had not claimed any relief against the Municipality. The Municipality's right to realise the amount of property tax together with interest, if any, is not in dispute. Although the liability of Venugopal in terms of the 1920 Act to pay the property tax continued, it has been accepted at the Bar that the plaintiff-respondents were also liable to pay the amount of property tax after the date of sale. In a case of this nature, therefore, the plaintiff-respondents can be directed to pay the amount of property tax by way of redemption of mortgage in favour of the Municipality. 35. If any amount is available with the court out of the amount received from the auction-sale, the same may be paid to the appellants. The appellants would also be otherwise entitled to file an appropriate suit as against Manickam and others." 254. The aforesaid decision in T. Vijendradas (supra) would not help the case of the respondent nos. 1 and 2 respectively herein. As opposed to the respondent nos. 1 and 2 respectively herein, the plaintiff in T. Vijendradas (supra) was a "thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty 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 to 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 remed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efs claimed owing to them being pendente lite transferees of the judgment-debtor whose transaction would be hit by the doctrine of lis pendens. 257. In light of the aforesaid, the High Court in its impugned judgment could be said to have committed an error by preoccupying itself with the allegations of fraud made by the respondents nos. 1 and 2 respectively and ignoring the true essence of the provisions under Section 47 and Order XXI CPC respectively, in holding the suit to be maintainable. If the approach taken by the impugned decision i.e., that fraud vitiates everything, is endorsed, especially in the context of an auction sale conducted by the executing court, then Rule 90 of Order XXI CPC which is time-bound and which deals with the very same aspect i.e., material irregularities or fraud in conducting or publishing the sale, would be rendered obsolete. Courts must be vigilant as to when the plaintiff is invoking grounds which otherwise could be said to fall under the scope of Rule 90 of Order XXI CPC and when the grounds raised by the plaintiff are such that the entire execution proceedings and the consequent sale suffered from the want of jurisdiction and/ or was a nullit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ound of litigation for the limited relief of recovery of money from the original vendor i.e., respondent no.3. 264. In the peculiar facts and circumstances of the present case and with a view to do substantial justice, we direct that the appellants pay a sum of Rs. 75,00,000/- to the respondent nos. 1 and 2 respectively, within a period of 6 months from the date of this judgment. The failure to pay the aforesaid sum within such a period would attract an interest at the rate of 12% per annum till the date of payment. 265. In the event of any default by the appellants herein in complying with the aforesaid directions, the respondent nos. 1 and 2 respectively, would be at liberty to move to this Court. 266. Pending applications, if any, shall stand disposed of. 267. Registry shall circulate one copy each of this judgment to all the High Courts. ============= Document 1 Order of confirmation of sale Order of sale Progress of the execution proceedings. Recourse to a "third party" to assert his title through a separate suit against the auction purchaser, as indicated under Rule 92(4) which would be in consonance with Rule 58(5) Recourse to a "third party" to ....