Siddagangaiah (D) Thr. Lrs. vs N.K. Giriraja Shetty (D) Thr. Lrs.

Allowing the appeal, the Court

HELD: 1.1 Sub-rule (1) of Order XXI Rule 90 makes it clear that when any immovable property has been sold in execution of a decree, the decree-holder or the purchaser or any other person entitled to share in a ratable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. As provided in sub-rule (2) of Rule 90 of Order XXI merely on the ground of irregularity or fraud, the sale shall not be set aside unless the substantial injury has been caused to the objector by reason of such irregularity or fraud and such an objection should be the one which could not have been raised before the date on which the proclamation of sale was drawn up as provided in Order XXI Rule 90 sub-rule (3) and mere defect or absence of attachment of the property shall not be a ground for setting aside a sale. It is necessary to prove the substantial injury where fraud or material irregularity has taken place whereby injustice had been suffered. In the present case, the application under Order XXI Rule 90 was filed by original plaintiff which was dismissed for default in appearance. It was nonetheless dismissal of the application so filed. It was not a case set up that the decree passed in maintenance case was obtained by fraud and substantial injury thereby has been caused. [Para 23] [470-C-F]

Rajender Singh v. Ramdhar Singh & Ors. AIR 2001 SC 2220 – relied on.

1.2 Where an application has been filed under Rule 90 Order XXI CPC to set aside a sale on the ground of material irregularity, and the sale is confirmed under Rule 92(1) of Order XXI, the objector is precluded by virtue of the provisions under Order XXI Rule 92(3) from bringing a suit to set aside the sale on the same grounds. [Para 24] [470-G]

Brahayya v. Appayya, (1921) 44 Mad. 351 : 62 IC

203 : AIR 21 Mad. 121, Ma Saw v. Maung Kyaw AIR

28 Rang 18; Nand Kishore v. Sultan AIR 1926 Lah

165 – approved.

1.3 When the auction purchaser is the decree-holder himself and when an application is made to set aside the sale on a ground other than that covered by Rule 90 and no application has been made under Rule 89, the case would fall under section

47. Thus, it would depend upon the grounds which are urged in the application. It is permissible to join a claim to set aside a sale on the ground of material irregularity under Order XXI, Rule 90 with a claim under section 47 for a declaration that the sale is a nullity as the decree was passed after the death of the judgmentdebtor. Objection by legal representatives of deceased judgmentdebtor that suit land was ancestral property and sale was not binding on them can be raised under section 47 read with Order XXI Rule 90. However, it would depend upon the nature of the objection whether it was covered under Rule 90 of Order XXI CPC or not. There can be restoration of the petition dismissed for default filed under Order XXI Rule 90 and thereafter if sale has been confirmed, it is provided under Order XXI Rule 92(3) that no suit to set aside an order made under Rule 92(1) shall be brought by any person against whom such an order is made. Order XXI Rule 92(1) provides that where an application has been filed under Order XXI 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 XXI 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 XXI Rule 89, 90 or 91 has been dismissed for default. [Para 25] [471-A-F]

Superior Bank Ltd. v. Budh Singh, (1924) 22 All LJ

413 ; Akshia v. Govindarajulu (1924) 47 MLJ 549 – approved.

2.1 In the instant case admittedly an application was filed by original plaintiff under Order XXI, 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 the execution proceedings. He was a purchaser for value. The property was not correctly valued. There were material irregularities in the conduct of the sale. Hardship would be caused in case auction was confirmed. Thus, prayer was made to set aside the auction sale. The aforesaid application had been dismissed. Thus, Order XXI Rule 92(3) would operate as a bar for the entertainment of the fresh suit on the ground so urged. [Para 26] [471-G-H; 472-A-B]

2.2 The plaintiff has totally suppressed the factum of court auction sale and confirmation in the plaint and did not make any averment that he had filed an application under Order XXI Rule 90(1) and it was dismissed on 31.3.1978 whereas the suit was filed on 19.4.1978 after 19 days of the dismissal of the objection and confirmation of the sale. The plaintiff has not questioned the auction so held by the court on the ground of fraud or any material irregularity. He has claimed himself to be a bona fide purchaser. That plea was also raised in the application filed under Order XXI Rule 90. Dismissal of the same would preclude him to file a fresh suit, it was incumbent upon him to question the court auction on any permissible grounds necessary for the entertainment of fresh suit but that has not been done. Order VI Rule 4 CPC provides that the plea of fraud, misrepresentation, and collusion has to specifically set out in the pleadings before any finding can be given on the same. There is no evidence on record for substantiating the plea which itself was not taken, it has neither been substantiated. Thus, the first appellate court and the High Court have committed gross illegality by giving the finding with respect to fraud and collusion of the decree-holder and judgment debtor in the court auction so held. The auction purchase made by decree-holder had attained finality. Confirmation of sale was not questioned by the plaintiff. Thus, no relief could have been granted and the earlier orders have attained finality and operate as a bar for the entertainment of the fresh suit. [Para 27, 28] [472-B-D, E-G]

2.3 Coming to the question of lis pendens, decree-holder 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 decree-holder was pending. Thus, the provisions contained in section 52 would clearly apply to the case. [Para 29] [472-G-H; 473-A-B]

Nagubai Ammal & Ors. v. B. Shama Rao & Ors.

AIR 1956 SC 593 – relied on.

3. Section 39 of TP Act clearly makes out that charge of maintenance can be enforced against the immovable property held by a transferee. In the instant case, the transferee was not put in possession of the property is apparent from the plaint and possession of defendant No.1. The sale also does not appear to be bona fide. It was clear with the intent to defeat the claim of the wife for maintenance that is why possession had not been handed over. The case of the plaintiff that though sale deed was executed in 1974, defendant No.1 again took forcible possession in 1976, is not worthy of acceptance. Apart from that it is not so pleaded in the application under Order XXI Rule 90 that he was not aware of the pendency of the suit at the time of execution of the sale deed on 9.11.1974. He was a close friend of defendant No.1 and was obviously aware of the factum of litigation pending since 1968. Thus, he could not be said to be a bona fide purchaser at all. Apart from that, the application under Order XXI Rule 90 read with section 47 CPC containing the said plea stood dismissed. [Para 31] [474-B-E]

Sadhu Singh v. Gurdwara Sahib Narike & Ors. (2006)

8 SCC 75 – held inapplicable.

Nani Gopal Paul v. T. Prasad Singh & Ors. (1995) 3 SCC 579; Lal Chand v. VIIIth Addl. District Judge & Ors. (1997) 4 SCC 356 – referred to.

4.1 In the instant case, there is no admission after parting with the interest made in the execution proceedings inter se husband and wife. The auction was held by the court in accordance with law. It was not the case set up that the decree passed in the maintenance suit was based upon fraud or a collusive one. Nor was such a case so set up with respect to the auction of the properties in the execution of the decree. On the contrary, the husband had preferred an appeal against the judgment and decree passed in the maintenance case, which was dismissed on merits. [Para 40] [476-G-H; 477-A]

4.2 After parting with the interest, no admission with respect to the interest which has been parted away is admissible, Section 18 of Evidence Act is not attracted in the fact-situation of the instant case. The so-called settlement entered into between the husband and wife on 5.8.1978 has not been pressed into service by either and has been disowned by the husband and wife both. They set up a case that no such settlement had been entered into nor any claim had been made by them on the basis thereof. Had that been the case, the provisions of section 18 of the Evidence Act would have been attracted. [Para 40] [477-F-G] V. Swarajyalaxmi & Ors. v. Authorised Officer, Land Reforms, AIR 2003 SC 2347: [2003] 3 SCR 575 – held inapplicable.