Danesh Singh vs. Har Pyari (Dead) Thr. Lrs.

2025 INSC 1434

REPORTABLE


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14761 of 2025
(Arising out of SLP(C) No. 14461 of 2019)


DANESH SINGH & ORS. …APPELLANT(S)

VERSUS

HAR PYARI (DEAD) THR. LRS. & ORS. …RESPONDENT(S)


J U D G M E N T


Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2025.12.15
15:33:32 IST
Reason:


J.B. PARDIWALA, J:
For the convenience of exposition, this judgment is divided into the
following parts:-
INDEX
A. FACTUAL MATRIX ............................................................................... 3
B. THE JUDGMENT & DECREE OF THE TRIAL COURT ................ 8
I. Ownership and possession of the respondent nos. 1 and 2
respectively ................................................................................................. 8
II. Knowledge of both the auction sale and the existence of the
mortgage in favour of the respondent no. 6-bank on part of the
plaintiffs-respondent nos. 1 and 2 respectively. ................................. 9
III. Manner in which the auction was conducted. ................................... 10
IV. Maintainability of the suit instituted by the respondent nos. 1 and

2 respectively 11
............................................................................................
V. Relief granted ........................................................................................... 12
C. THE IMPUGNED JUDGMENT......................................................... 12
D. SUBMISSIONS ON BEHALF OF THE PARTIES ......................... 14
I. Submissions on behalf of the appellants ........................................... 14
II. Submissions on behalf of the respondent nos. 1 & 2
respectively ............................................................................................... 17
E. ISSUES FOR DETERMINATION ..................................................... 20
F. ANALYSIS ............................................................................................. 21
I. Whether the transfer of the suit property is hit by Section 52 of the
1882 Act and the doctrine of Lis Pendens? ......................................... 21
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. ....................................... 25
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? ............................................................................................. 39
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a. Scope and application of Rule 89 of Order XXI CPC, with
specific reference to whether pendente lite transferees can
maintain such an application ....................................................... 40
49
b. Scope and application of Rule 90 of Order XXI CPC ................
i. The maintainability of an application under Rule 90 vis-á-vis
fraud or irregularities pertaining to stages prior to the
proclamation of sale i.e., at the stage of attachment. .................... 51
ii. Questions on whether the judgment-debtor had any “saleable
interest” over the attached/sold property cannot be brought
under the ambit of Rule 90 ............................................................... 66
III. Whether the respondent nos. 1 and 2 respectively, could have
maintained a separate suit in light of the bar envisaged under Rule
92(3) of Order XXI CPC and Section 47 CPC respectively, and
whether they are “third parties” as referred to under Rule 92(4) of
Order XXI CPC? ....................................................................................... 73
a. Scope and application of Rule 92 of Order XXI CPC ................ 73
b. The bar to a separate suit envisaged under sub-rule (3) of
Rule 92. .............................................................................................. 76
c. The interplay between the bar to a separate suit as provided in
Rule 92(3) of Order XXI CPC and the bar to a separate suit
referred to under Section 47 CPC. ................................................. 88
d. The scope and meaning of the term “third party” under Rule
92(4), the option of filing a separate suit being made available
to such third parties and its interplay with Rule 58 of Order XXI
CPC. ................................................................................................... 97
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? ......................................................................................... 114
a. Essential ingredients for the invocation of Rule 99 ................. 117
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 .................................................................................................. 127
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V. Delineating when a third party could file an application under
Order XXI CPC and when he could resort to a separate suit in order
to assert his right, title and interest in the said property. ............. 152
VI. The decision of this Court in T. Vijendradas (supra). ................... 161
G. CONCLUSION .................................................................................... 166



1. Leave granted.

2. This appeal arises from the judgment and order dated 29.01.2019
(hereinafter, the “ Impugned Judgment ”) passed by the High Court
of Punjab and Haryana in RSA. No. 2518 of 2004 (O&M)
(hereinafter, the “ High Court ”), by which the second appeal filed
by the appellants herein came to be dismissed, thereby affirming the
judgment and order dated 12.05.2004 passed by the Court of District
Appellate Court
Judge, Faridabad (hereinafter, the “ ”) holding the
suit instituted by the respondent nos. 1 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:-

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4. In the year 1970, Duli Chand had availed a loan of Rs. 20,000/- from
New Bank of India, i.e., the respondent no. 6, to purchase a tractor,
and in lieu thereof he had mortgaged his property admeasuring 116
Kanals 13 marlas (hereinafter, “ the mortgaged property ”), vide a
registered Mortgage Deed dated 06.06.1970. However, it is to be
noted that this appeal pertains to only a portion of the aforesaid
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mortgaged property, more particularly, a parcel of land
admeasuring 24 Kanals 11 marlas (hereinafter, “ the suit property ”).


5. Owing to his failure in repaying the entire loan amount, on
04.06.1982, the respondent no. 6-bank instituted a suit before the
Sub-Judge, 1st Class, Faridabad, being Suit No. 151 of 1982, for
recovery of the due amount of Rs. 15,529/- and in the event of
default in repayment, the respondent no. 6-bank prayed for
foreclosure and sale of the aforesaid mortgaged property.

6. On 12.11.1984, the suit instituted by the respondent no. 6-bank was
decreed ex-parte against the respondent nos. 3 to 5 respectively, as
the original borrower had passed away during the pendency of the
suit (hereinafter, the “ original decree ”). The decree ordered the
recovery of the due amount alongwith costs and interest amounting
to Rs. 22,753/- (hereinafter, “ the decretal amount ”). No appeal was
preferred against the original decree and the same had, therefore,
attained finality.


7. It is only subsequent to the passing of the original decree that, on
13.05.1985, the respondent no. 1 purchased 17 Kanals 2 marlas of the
mortgaged property for Rs. 45,000/- from the respondent no. 3, i.e.,
one of the judgment debtors and son of the original borrower.

8.
Shortly thereafter, on 25.05.1985, the respondent no. 6-bank moved
for execution of the decree and prayed that the decretal amount be
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paid, alongwith costs and interest by way of attachment and sale of
the mortgaged property.

9.
Again, on 24.06.1985, the respondent no. 2 (husband of the
respondent no. 1) purchased another 7 Kanals 9 marlas of the
mortgaged property for Rs. 25,000/- from the same respondent no.
3. Thus, in totality the respondent nos. 1 and 2 respectively,
purchased 24 Kanals 11 marlas of the mortgaged property (which
constitutes the present suit property) for an amount of Rs. 70,000/-
from the respondent no.3. The first purchase was effected before the
execution petition 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.
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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 satisfaction as regards the fulfillment of the
decretal amount and delivery of possession to the appellant-
auction-purchasers.

13. It is the case of the respondent nos. 1 and 2 respectively that on
05.07.1989, i.e., on a date after the delivery of possession to the
appellant-auction-purchasers, they were denied access to the suit
property. This denial, according to them, gave rise to the cause of
action to file a separate suit, being Suit No. 353 of 1989, before the
Civil Judge (Jr. Division), Faridabad (hereinafter, the “ Trial Court ”).
This suit is the genesis of the appeal before us.

14. In the suit, the plaintiffs-respondent nos. 1 and 2 respectively,
prayed for a declaration to the effect that the sale in respect of the
suit property is void and not binding upon their right, title and
interest, and that they continue to be owners in possession. As a
consequential relief, a decree for permanent injunction against the
appellants was also prayed for, and in the alternative, a decree for
possession qua the suit property was sought.

15.
In the aforesaid suit, the Trial Court passed a decree declaring that
the sale in respect of the suit property was void, illegal and not
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binding upon the plaintiffs-respondent nos. 1 and 2 respectively,
and that the plaintiffs are the owners of the suit property. Further, a
decree for joint possession was passed in favour of the plaintiffs-
respondent nos. 1 and 2 respectively.


16. Aggrieved by the decree, the appellants-auction-purchasers,
preferred an appeal before the Appellate Court. The Appellate
Court dismissed their appeal and held that the vendor of the
plaintiffs-respondent nos. 1 and 2 respectively (i.e., respondent no.
3) being the joint owner of the mortgaged property was competent
to sell the same and that the plaintiffs-respondent nos. 1 and 2
respectively, are lawful owners of the suit property.

17. Being aggrieved by the aforesaid, the appellants preferred Regular
Second Appeal No. 2518 of 2004 before the High Court. The High
Court had also dismissed the second appeal.

18.
In such circumstances referred to above, the appellants are here
before this Court with the present appeal. Vide order dated
15.07.2019, while issuing notice, this Court had directed that the
parties shall maintain status quo.

B. THE JUDGMENT & DECREE OF THE TRIAL COURT

I. Ownership and possession of the respondent nos. 1 and 2
respectively

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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 although plaintiffs were
the owners of the suit property, yet they were not in continuing
possession.

II. Knowledge of both the auction sale and the existence of the
mortgage in favour of the respondent no. 6-bank on part of the
plaintiffs-respondent nos. 1 and 2 respectively.

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21. The Trial Court recorded that the plaintiffs-respondent nos. 1 and 2
respectively had purchased the suit property with due diligence as
they had obtained a No Encumbrance Certificate from the Tehsildar
before entering into the sale with the respondent no. 3, and their
names were also mutated in the revenue records. It further observed
that, owing to the subsequent mortgage of a part of the suit property
by the plaintiff-respondent no. 1 with the Ballabgarh Primary Co-
op Agricultural and Rural Development Bank and its reflection in
the revenue records, there was sufficient material before the
respondent no. 6-bank to ascertain that the plaintiffs-respondent
nos. 1 and 2 respectively had a right, title and interest in the suit
property and thereby give notice of the proclamation of sale to
them. However, the respondent no. 6-Bank failed to give such notice
and also failed to indicate the same in its affidavit filed under Rule
66 of Order XXI CPC.

22. In such circumstances, the plaintiffs-respondent nos. 1 and 2
respectively could not have reasonably had any notice of the auction
sale or the mortgage that was created by Duli Chand in favour of
the respondent no. 6-bank. It was only much later, i.e., on 05.07.1989,
when the plaintiffs-respondent nos. 1 and 2 respectively were not
allowed to plough their land did they know about the auction sale
and the transfer of the property in favour of the appellants.


III. Manner in which the auction was conducted.

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23. The Trial Court found that the manner of conducting the auction of
the mortgaged property in camera , where only the appellants herein
were the bidders along with the auctioning of the entire property
instead of a portion thereof, was contrary to the provisions of law
and that it left little room for doubt that the sale of the suit property
was illegal, void, and not binding upon the plaintiffs-respondent
nos. 1 and 2 respectively. The Court further found that the
respondent nos. 3 to 5 respectively, i.e., the judgment debtors were
specifically debarred from participating in the bidding process by
the Executing Court 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
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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. It
declared that the auction sale only insofar as the suit property was
concerned, was void, and did not affect the right, title and interest
of the respondent nos. 1 and 2 respectively. The Trial Court further
held that the respondent nos. 1 and 2 respectively were the lawful
owners of the suit property and granted them the relief of joint
possession of the entire mortgaged property along with the
appellants.

26. In the first appeal, the Appellate Court affirmed the judgment and
decree passed by the Trial Court, and held that the respondent no.
3, being the joint-owner of the mortgaged property, was competent
to sell the land to the respondent nos. 1 and 2 respectively.

C. THE IMPUGNED JUDGMENT

27. The High Court, in its impugned judgment, also took note of the fact
that the auction had taken place in camera at the residence of the
Village Sarpanch. It further observed that the proclamation of the
sale issued by the Executing Court specifically barred the judgment-
debtors from offering any bid or participating in the said auction.
Despite such a prohibition, the appellants had participated in the
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auction without obtaining any express permission of the Executing
Court. It further lamented that not only were the plaintiffs-
respondent nos. 1 and 2 respectively kept uninformed about the
auction, the fact of the transfer of the property in favour of the
plaintiffs-respondent nos. 1 and 2 respectively was also not
disclosed before the Executing Court.

28. The High Court expressed its concern over the validity of the
auction sale by noting that the suit property admeasuring 24 Kanals
th
11 marlas, which constitutes merely 1/4 of the entire mortgaged
property, admeasuring 116 Kanals and 13 marlas, was sold for Rs.
70,000/- to the plaintiffs-respondent nos. 1 and 2 respectively.
Whereas the entire mortgaged property was sold in auction only for
a meagre amount of Rs. 35,000/-. It further observed that although
the amount sought to be recovered by the respondent no.6-Bank
was only Rs. 22,753/- and that such amount stood satisfied yet the
plaintiffs-respondent nos. 1 and 2 respectively had been put in a
very precarious position on account of the auction sale.


29. On the question of maintainability of the suit, the High Court held
that the respondent nos. 1 and 2 respectively could be said to be
“representatives” of the judgment debtor (respondent no. 3) 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
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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 it to the respondent nos. 1 and 2 respectively. It
is well-settled law that a vendor cannot transfer a title to the vendee
better than what he himself possesses. He submitted that the
respondent nos. 1 and 2 respectively could be said to have attained
a derivative title from the respondent no. 3 and accordingly,
stepped into his shoes.


31. Further, relying on the decision of this Court in M/s Siddamsetty
Infra Projects Pvt. Ltd. v. Katta Sujatha Reddy & Ors. , reported in
2024 INSC 861 , he submitted that the transfer of the suit property
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by the respondent no. 3 in favour of the respondent nos. 1 and 2
respectively would be hit by Section 52 of the Transfer of Property
Act, 1882 (for short, “ the 1882 Act ”), as the principle of lis pendens
continues till the satisfaction of the decree. By placing reliance on
another decision of this Court in Sanjay Verma v . Manik Roy ,
reported in (2006) 13 SCC 608 , he submitted that no question of
good faith or bona fides arise as the principle of lis pendens is a
principle of public policy. He urged that this Court must not
encourage pendente lite transactions and regularize the conduct of
such transferees by showing equity in their favour.

32. He further submitted that the respondent nos. 1 and 2 respectively
were fully aware of the possession being handed over to the auction
purchasers-appellants on 24.06.1986, i.e., during the pendency of the
execution proceedings. At that stage they could have availed
themselves of the remedy available under Order XXI Rules 99 and
100 respectively but could not have instituted a separate suit. Such
a suit, in his opinion, would also be barred under Section 47 of the
CPC.


33. He relied on the decision of this Court in Harnandrai Badridas v.
Debidutt Bhagwati Prasad & Ors. , reported in (1973) 2 SCC 467 ,
N.S.S. Narayana Sarma & Ors. v . Goldstone Exports (P) Ltd. ,
reported in (2002) 1 SCC 662 , Asgar & Ors. v . Mohan Varma ,
reported in (2020) 16 SCC 230 , and Shamsher Singh & Anr. v . Lt.
Col. Nahar Singh (D) Thr. Lrs. , reported in 2019 SCC OnLine SC
938 , to submit that it is a settled position of law that all questions
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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
executing court and not by a separate suit. Such is also the mandate
reflected 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 good, he placed reliance on the
decision of this Court in M/s Al-Can Export Pvt. Ltd. v. Prestige HM
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Polycontainers Ltd. & Ors. , as reported in (2024) 9 SCC 94 . He
further submitted that a separate suit cannot be allowed to be filed
by the respondent nos. 1 and 2 respectively to overcome the
limitation period which has been prescribed for an application
under Rule 90.

36. In such circumstances referred to above, the learned Senior Counsel
appearing for the appellants-auction purchasers would submit that
there being merit in his appeal, the same may be allowed and the
impugned judgment passed by the High Court be set aside.

II. Submissions on behalf of the respondent nos. 1 and 2 respectively

37. Per contra , Ms. Aparajita Singh, the learned Senior Counsel
appearing for the respondent nos. 1 and 2 respectively would
submit that no error, not to speak of any error of law, could be said
to have been committed by the High Court in passing the impugned
judgment.


38. She submitted that the separate suit was not barred by Section 47 of
the CPC as the respondent nos. 1 and 2 respectively were “ third
parties ” as contemplated under Order XXI Rule 92(4). The said
provision permits a third party to challenge the title of a judgment-
debtor by filing a suit against the auction purchaser wherein the
decree-holder and the judgment-debtor would be necessary parties.
She further submitted that the essentials of Order XXI Rule 92(4)
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stood satisfied, and therefore, the question of maintainability
assumes no relevance.


39. To fortify her submission on the question of maintainability,
reliance was placed on the decision of this Court in T. Vijendradas
v. M. Subramanian , as reported in (2007) 8 SCC 751 , wherein in an
almost-identical factual situation, the property was fraudulently
auctioned in execution of a decree without notice to the actual
owner. She submitted that the court took note of the fraudulent
conduct of the vendor and held that a judgment or an order
obtained by fraud is a nullity and non-est , and could thereby be
challenged even in a collateral proceeding. Therefore, it was her
view that the High Court rightly arrived at the finding that the
appellants had indulged in fraudulent transactions as a
consequence of which the respondent nos. 1 and 2 respectively
could have challenged the validity of the auction sale even in
collateral proceedings. Thus, the 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.
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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
th
constituted 1/4 of the total extent of the mortgaged property.
Order XXI Rule 66(2)(a) states that where the mortgaged property is
large and more valuable than the decretal amount, it would be
incumbent upon the Executing Court to order the sale of only such
portion of the mortgaged property which would satisfy the decree.
Ms. Singh contended that the nature of Order XXI Rule 66 is
mandatory and not directory. To fortify her submission, she relied
v.
upon the decision in the case of Lal Chand VIIIth Additional
(1997) 4 SCC 356
Judge & Ors. , reported in .


42. Ms. Singh alluded to the deceitful conduct of the auction
purchasers-appellants by pointing out that, on the date of the
auction, they had purchased the entire mortgaged property for
meagre amount of Rs. 35,000/- in spite of the fact that they were
proscribed from participating in the auction without the permission
of the Executing Court. On the other hand, the respondent nos. 1
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and 2 respectively have registered sale deeds in their favour, along
with their names mutated in the revenue record.


43. In the last, she submitted that the suit property was lawfully
transferred to the respondent nos. 1 and 2 respectively. The Trial
Court had rightly declared the auction sale to be void on the
grounds of fraud and irregularities in and during the auction
proceedings. The two appellate courts below could not be said to
have committed any error in refusing to disturb the said findings.

44. In such circumstances referred to above, the learned Senior Counsel
prayed that there being no merit in the appeal, the same may be
dismissed.


E. ISSUES FOR DETERMINATION

45. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following
questions fall for our consideration: -


I. Whether the transfer of the suit property in favour of the
respondent nos. 1 and 2 respectively, is hit by Section 52 of
the 1882 Act and the doctrine of Lis Pendens ?

II. Whether the respondent nos. 1 and 2 respectively, could
have sought any relief under Rule(s) 89 or 90 of Order XXI
CPC respectively before the Executing Court?
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III. Whether the respondent nos. 1 and 2 respectively, were
“third parties” who could have instituted a separate suit as

per sub-rule (4) of Rule 92 Order XXI CPC?

IV. Whether the respondent nos. 1 and 2 respectively, were
“representatives of 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.
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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 respectively
could be said to suffer the same legal rights and obligations as that
of their vendor.

47. Whereas on the other hand, it was canvassed on behalf of the
respondent nos. 1 and 2 respectively that although the respondent
no.6-bank, in their plaint, prayed for the payment of the due amount
either in cash or by way of sale of the mortgaged property, the
original decree had only provided for the recovery of the due
amount without specifically directing that the mortgaged property
be sold. In other words, the original decree was a simple money
decree. It was only subsequent to the aforesaid decree that the
mortgaged property came to be attached by the Executing Court
vide its order dated 08.10.1985 due to the failure of the judgment-
debtors in making the payment to the decree-holder bank.
Therefore, in the suit instituted by the bank for recovery of money,
the right, title or interest of the mortgaged property was not directly
in question, and the transfer of the suit property, after the passing
of the original decree, would not be hit by the doctrine of lis pendens,
especially considering that the order of attachment was made much
later in time. To reiterate, she would submit that the sale deeds in
favour of the respondent nos. 1 and 2 respectively, were executed
on 13.05.1985 and 24.06.1985 respectively, whereas, the suit
property was attached only much later, on 08.10.1985.

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48. To address this issue, we shall look into Section 52 of the 1882 Act.
It reads thus:-
“ 52. Transfer of property pending suit relating
thereto. —During the pendency in any Court having
authority within the limits of India excluding the State of
Jammu and Kashmir or established beyond such limits by the
Central Government, of any suit or proceeding which is not
collusive and in which any right to immovable property is
directly and specifically in question, the property cannot be
transferred or otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party thereto
under any decree or order which may be made therein, except
under the authority of the Court and on such terms as it may
impose.

Explanation.—For the purposes of this section, the
pendency of a suit or proceeding shall be deemed to commence
from the date of the presentation of the plaint or the
institution of the proceeding in a Court of competent
jurisdiction, 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.
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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 decree, and the “ complete satisfaction or
discharge of such decree ” has been obtained, unless the same cannot
be obtained due to the expiry of the prescribed limitation period.

51. This Court in Celir LLP v . Sumati Prasad Bafna , reported in 2024
SCC OnLine SC 3727 , where one of us (J.B. Pardiwala, J.) was part
of the Bench had the occasion to elucidate the essentials of Section
52 of the 1882 Act. The relevant observations read as under:-

“ 158. The following conditions ought to be fulfilled for the
doctrine of lis pendens to apply:—
i. There must be a pending suit or proceeding;
ii. The suit or proceeding must be pending in a competent
court;
iii. The suit or proceeding must not be collusive;
iv. The right to immovable property must be directly and
specifically in question in the suit or proceeding;
v. The property must be transferred by a party to the
litigation; and
vi. The alienation must affect the rights of any other party to
the dispute.

159. In short, the doctrine of lis pendens, which Section 52
of the TPA encapsulates, bars the transfer of a suit property
during the pendency of litigation. The only exception to the
principle is when it is transferred under the authority of the
court and on terms imposed by it. Where one of the parties to
the suit transfers the suit property (or a part of it) to a third-
party, the latter is bound by the result of the proceedings even
if he did not have notice of the suit or proceeding .”
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(Emphasis supplied)


52. This Court in Celir LLP (supra) had also emphasized that such a
pendente lite transferee would be bound by the result of the
proceedings irrespective of whether they had notice of the pending
suit or not. In other words, that the lack of knowledge of the
proceedings would not be a valid defence against the application of
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.


53. The principal contention canvassed on behalf of the respondent nos.
1 and 2 respectively was that Section 52 of 1882 Act will not apply
to the facts of the present case as the suit property was not “ directly
and specifically in question ” in the suit 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
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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 judicial proceeding comprising
of an attack and defense as between opposing parties. By the use of
the expression “ a contentious suit or proceeding ”, the application of
the doctrine may have been confined only to those proceedings in
which both the parties were present and actively contesting the
matter. In other words, the provision may have had no application
on ex-parte proceedings where one of the parties had chosen not to
participate.

56. It was recognised that such a restricted view would defeat the
purpose of the provision. Section 52 casts an embargo on the parties
to the suit from transferring the property in question, in order to
preserve the subject matter of the lis and to prevent the rights of the
parties from being defeated by alienations pendente lite . If the
doctrine were made inapplicable to ex-parte proceedings, a party
would deliberately abstain from appearing before the court, transfer
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the property during the pendency of the suit, and thus, render the
adjudication of rights in the said suit, infructuous.


57. Secondly , the words “ any suit or proceeding ” has to be read in
conjunction with the expression “ in which any right to immovable
property is directly and specifically in question ”. Careful attention must
be paid to the words “ any right” along with the words “ directly and
specifically ”. While the former indicates the intention of the
legislature to afford some expansiveness to Section 58, the latter
narrows down its scope. To elaborate, this indicates, on the one
hand, that the scope of the provision is not confined to suits wherein
the same right to the property is in question, while indicating on the
other hand that, that it also cannot be expanded to all suits wherein
any right to the suit property is not directly and specifically
considered by the court.

58. What then holistically emerges from the amendment is that, under
the pre-amended provision, the suit was required to be actively
contested in relation to any right in the immovable property.
However, after the amendment, the pendency of any suit, whether
contentious or not, is enough. Moreover, even where the suit is not
solely one relating to the same right in the immovable property, if
any right, title or interest as regards such immovable property is
directly and specifically forming part of the subject-matter of the
suit, Section 52 and the doctrine of lis pendens would stand attracted.
In other words, the amendment, considered cumulatively, has
widened the application of Section 52 of the 1882 Act.
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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. The Court held
that the want of notice would be immaterial to the application of
Section 52 of the 1882 Act, and the plaintiff would be entitled to
enforce the decree against the property in the hands of the
transferees, even if the transferees had purchased the property for
consideration and without notice of the original suit. The Court
concluded that the right to be maintained out of the income of the
immovable property was a “ right to immovable property ” which was
directly and specifically in question, thereby attracting the doctrine
of lis pendens . The relevant observations read thus:-

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“The next point for consideration is whether section 52 of the
Transfer of Property Act applied. If section 52 applied then
want of notice would be immaterial and the widow would be
entitled to enforce the decree against the property in the
hands of the transferee from her judgment-debtors even if the
transferee had purchased the property for valuable
consideration and without notice.

xxx

Section 52, as amended by Act XX of 1929, is in these
terms—
“During the pendency in any court having authority in
British India, or established beyond the limits of British
India by the Governor-General in Council of any suit or
proceeding which is not collusive and in which any right
to immoveable property is directly and specifically in
question, the property cannot be transferred or
otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party
thereto under any decree or order which may be made
therein, except under the authority of the court and on
such terms as it may impose.
Explanation— For the purposes of this section the
pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the plaint
or the institution of the proceeding in a court of
competent jurisdiction, 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.”

The section has been amended in certain material particulars.
The word ‘pendency’ has been substituted for the words
‘active prosecution’. The words ‘any suit 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
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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 maintained out of
the income of that property, and that she was entitled to have
a charge created on the property, all raise questions relating
to right to immoveable property. The point, however, is
whether ‘right, to such property’ is ‘directly and specifically
in question’ or the main claim is for maintenance and it is
only collaterally that the property has been brought in. There
is some difference of opinion on this point, but I am inclined
to the view that in such a case it can be said that right to
immoveable property is directly and specifically in question.
Any doubts that one may have had on the point must be
deemed to have been set at rest by the decision of their
Lordships of the Judicial Committee in Syud Bazayet
Hossein v. Dooli Chund [(1879) I.L.R. 1 Cal. 402.] . In that
case a Mohammedan widow had claimed a right to be
maintained out of certain properties detailed in the plaint and
had also claimed that a charge be created, and when the
property was transferred in disregard of the charge created in
favour of the widow by the decree their Lordships of the
Judicial Committee held that the doctrine of lis
pendens applied. It is not for me to examine whether a
Mohammedan widow is entitled to the maintained out of
certain properties in the absence of agreement merely on the
ground that she is a Mohammedan widow. It is also not for
me to consider whether the charge was rightly created, but
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that being the nature of the suit and a decree creating a charge
having been passed their Lordships held that it operated as lis
pendens, and that, to my mind, must set this point at
rest.[…] ”
(Emphasis supplied)

60. In Siddagangaiah (supra) , the plaintiff had filed a suit against her
defendant-husband for the grant of maintenance and the creation of
a charge on certain properties. After the filing of the suit and before
it came to be decreed, the defendant executed a sale deed qua some
of those properties. This Court by relying on the decision in the case
of Nagubai Ammal & Ors. v . Shama Rao & Ors. , reported in (1956)
1 SCC 698 , held that when a prayer in the suit seeks to create a
charge on a specific property, it is a suit in which the right to
immovable property is directly in question. Further, the lis is said to
commence on the date of the presentation of the plaint and not on
the date of the decree. The relevant observations read thus:-

“ 28. Coming 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
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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 commences only after it is admitted
and registered as a suit, which was in this case on 17-6-1920,
subsequent to the sale under Ext. VI — a contention directly
opposed to the plain language of the Explanation to Section
52. And he also conceded and quite rightly, that when a suit
is filed for maintenance and there is a prayer that it be
charged on specified properties, it is a suit in which right to
immovable property is directly in question, and the lis
commences on the date of the plaint and not on the date of the
decree, which creates the charge.[…] ”
(Emphasis supplied)


61. One could argue that the decree in Mahesh Prasad (supra) had
specifically mentioned that a charge be created on the property and
the property was alienated after the passing of such a specific
decree, and it was therefore held that the transaction would be hit
by the doctrine of lis pendens . Whereas in the facts of the present
case, the decree was silent on whether the mortgaged property must
be directed to be sold and hence, the transfer in favour of the
respondent nos. 1 and 2 respectively would not be covered by
Section 52. In other words, that the decree in the present case was
simply a money decree. This is, more or less, the argument
canvassed by the counsel for the respondent nos. 1 and 2
respectively.

62. This line of reasoning is plainly defeated by the decision in
Siddagangaiah (supra) wherein the court had applied the doctrine
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underlying Section 52 even in a situation where the plaint had
prayed that a charge be created on the properties and some of the
properties were sold off before the decree creating a charge came to
be passed. Therefore, one must also look carefully at the prayers
sought for in the plaint to ascertain the application of the doctrine
of lis pendens .

63. To substantiate our reasoning, we may also look into the decision of
the High Court of Madras in Annakkili v . Murugan & Anr. , reported
in 2021 SCC OnLine Mad 1673 , wherein the plaintiff had filed a suit
for the recovery of money, and also sought for a direction to be
given to the judgment-debtor to furnish security for the suit claim,
failing which the court must direct that the properties mentioned in
the plaint, be attached. Before any direction could be passed, the
appellant therein purchased one of the properties mentioned in the
plaint. It was then argued that Section 52 of the 1882 Act cannot 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
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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 Pvt. Ltd. v. Tosh Apartments Pvt.
Ltd., CDJ 2012 SC 560 has clearly ruled that the transfer of
any right, title or interest in the suit property or the
consequential acquisition of any right, title or interest during
the pendency of the suit will be subject to the decision in the
suit. The reason being that the operation of bar under Section
52 is subject to the power of the Court to exempt the suit
property from the operation of Section 52.[…] ”

xxx

9. A close reading of the Explanation given under Section 52
makes it abundantly clear and comes to the aid of the first
respondent/decree holder that for the purposes of this section,
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 in a court of competent
jurisdiction. As highlighted above, when the plaintiff/decree
holder had filed the suit and also the I.A. No. 1513 of 2009 on
29.9.2009, it goes without saying that the interest on the
immovable property was directly and specifically in question,
therefore, the suit properties ought not to have been sold in
favour of the appellant on 8.10.2009, who is the brother's wife
of the second respondent/judgment debtor.

10. Further, Section 52 does not say that the doctrine of lis
pendens will not apply to any money suit, because this
section cannot say so, since the Explanation given in Section
52 is conspicuous and explicit that for the purpose of this
section, 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 in a Court of competent
jurisdiction and to continue until the suit or proceeding has
been disposed of by a final decree or order and complete
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satisfaction or discharge of such decree or order has been
obtained. Therefore the true intent of Section 52 with
Explanation is vividly clear that the Defendant or Judgment
Debtor cannot transfer the suit property from the date of
initiation of proceeding for attachment before judgment in a
pending money suit and moreover, till the execution
proceeding of decree or order obtained is completely satisfied
or discharged, the mischief of Section 52 with Explanation
and Section 53 will operate against the Defendant,
irrespective of the fact whether it is a money suit or suit for
immovable property, inasmuch as Section 52 with
Explanation does not bar application of the principle of lis
pendens to money suit. Law maker of the Transfer of Property
Act were 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.

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65. In the present case, the suit property purchased by the respondent
nos. 1 and 2 respectively, was a parcel of land forming part of the
mortgaged property that the original borrower had mortgaged with
the respondent no. 6-bank in lieu of the loan availed by him. When
the bank instituted the suit and described the mortgaged property
in its material particulars along with seeking that the property be
sold in the event of default, the Trial Court could be said to have
been in seisin of a dispute wherein the right or interest in the suit
property was directly in play.

66. When the respondent nos. 1 and 2 respectively purchased the suit
property, it was a property which was “ directly and specifically in
question ” in the pending proceedings and hence, stood squarely
covered by Section 52 of the 1882 Act and the principle of lis pendens .
By purchasing a mortgaged property during the pendency of the
suit instituted by the respondent no.6-bank, the respondent nos. 1
and 2 respectively could be said to have agreed to be bound by the
outcome of such proceedings. Their contentions regarding the lack
of knowledge of the proceedings and the procurement of a No
Encumbrance Certificate respectively, to say that they were bona fide
purchasers, cannot be countenanced as the doctrine of lis pendens
applies to an alienation during the pendency of the suit irrespective
of whether the transferee had notice of the pending proceedings or
not. [ See : Sanjay Verma v . Manik Roy , (2006) 13 SCC 608 ; Usha
Sinha v . Dina Ram , (2008) 7 SCC 144 ]

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67. Further, once the decree itself recorded the existence of the
mortgage, and the plaint contained a joint prayer for recovery of
money alongwith the sale of the mortgage property, the implication
would naturally be that if the decretal amount remained unpaid, the
amount was to be realized by proceeding against the mortgaged
property in execution. In other words, the mortgage created an
interest in the property in favour of the respondent no. 6-bank, and
the decree also recognized that the property would answer the debt
in the event of default. The decree read thus:-
“ 2. The plaintiff is a banking company incorporated under
the banking companies (Acquisition and transfer of
Undertakings) Act, 1980, having its head office at New Delhi
and a branch at Nehru Ground Faridabad Sh. V.P. Gupta is
the Manager and Principal Officer of the plaintiff bank. He is
conversant 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 defendant no. 2(a) are their legal
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heirs. Various demands were made on them to do so and
hence the present suit.

3. The defendants did not appear despite service and they
were proceeded against exparte.

4. In exparte evidence, Sh. S.C. Gupta Assistant Manager of
the plaintiff bank appeared as PW1 and he has supported the
plaintiffs case in all material particulars. The on oath
statement of this witness which goes un rebutted, goes to
prove the plaintiffs case. Hence, the suit of the plaintiff for
recovery of Rs. 15529.35p. is decreed exparte against the
defendants with costs. Interest @ 15°/o P.a. is allowed to the
plaintiff on the decretal amount from the date of institution
of the suit till the date of 3ealization of the decretal amount.
Decree sheet be prepared and file be consigned.

Announced.
Dated: 12.11.84”
(Emphasis supplied)


68. Therefore, there exists no doubt that the respondent nos. 1 and 2
respectively were pendente lite transferees of the judgment-debtor(s).


69. We would also like to point out at this juncture, that the Trial Court
had unfortunately misdirected itself in recording that the
transaction in favour of the respondent nos. 1 and 2 respectively was
made on a date prior to the passing of the original decree, when in
actuality, it was made in two tranches i.e., one, after the decree came
to be passed and another, after the execution petition came to be
filed by the respondent no.6-bank. To put it simply, both tranches
of the transaction in favour of the respondent nos. 1 and 2
respectively were made well after the original decree was passed.

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70. Even going by the Trial Court’s understanding of when the
transactions in favour of the respondent nos. 1 and 2 respectively
were made, for the reasons we have assigned hereinabove, we are
of the view that they would still be hit by the doctrine of lis pendens
since the transactions were made after the institution of the original
suit by the respondent no.6-bank in which the right and interest to
the mortgaged property was directly and specifically in question.


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?


71. Before directly addressing the rival contentions as regards the
maintainability of the suit instituted by the respondent nos. 1 and 2
respectively, 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
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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. Aparajita Singh would submit that the separate suit
instituted by the respondent nos. 1 and 2 respectively, would be
maintainable by virtue of Rule 92(4) which comes into play once the
sale is confirmed.


74. Before we specifically address ourselves to these submissions, let us
look into the scope of these provisions.


a. Scope and application of Rule 89 of Order XXI CPC, with
specific reference to whether pendente lite transferees can
maintain such an application


75. Order XXI Rule 89 reads thus:-

“ 89. Application to set aside sale on deposit.—
(1) Where immovable property has been sold in execution of
a decree, [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,] may apply to
have the sale set aside on his depositing in Court,—

(a) for payment to the purchaser, a sum equal to five per cent
of the purchase-money, and
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(b) for payment, to the decree-holder, the amount specified in
the proclamation of sale as that for the recovery of which the
sale was ordered, less any amount which may, since the date
of such proclamation of sale, have been received by the decree-
holder.

(2) Where a person applies under rule 90 to set aside the sale
of his immovable property, he shall not, unless he withdraws
his application, be entitled to make or prosecute an
application under this rule.

(3) Nothing in this rule shall relieve the judgment-debtor
from any liability he may be under in respect of costs and
interest not covered by the proclamation of sale. ”

76. The rule stipulates the procedure for setting aside the sale made in
execution of a decree by (a) any person claiming an interest in the
auctioned property, either at the time of the sale or at the time of
making the application under Rule 89 or; (b) by a person acting for
or in the interest of such person. However, such an application
under Rule 89 must mandatorily be accompanied by a deposit
which contains two components – (a) a sum equal to five per cent of
the purchase money paid in the auction sale, which is to be given to
the auction purchaser, and; (b) the amount specified in the
proclamation of sale, less any amount which may have already been
received by the decree-holder since the date of such proclamation,
which is to be given 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
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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 court would be obligated to make
an order setting aside the sale, provided that notice is given to all
persons affected thereby, as stipulated under the proviso to Rule
92(2). The relevant observations read thus:-
“ 9. Execution is the enforcement by the process of the court
of its orders and decrees. This is in furtherance of the inherent
power of the court to carry out its orders or decrees. Order 21
CPC deals with the elaborate procedure pertaining to the
execution of orders and decrees. Sale is one of the methods
employed for execution. Rule 89 of Order 21 is the only
means by which a judgment-debtor can escape from a sale
that has been validly carried out. The object of the rule is to
provide a last opportunity to put an end to the dispute at the
instance of the judgment-debtor before the sale is confirmed
by the court and also to save his property from dispossession.
Rule 89 postulates two conditions: they are depositing: (1) of
sum equal to five per cent of the purchase money to be paid to
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the purchaser, (2) of the amount specified in the proclamation
of sale less any amount received by the decree-holder since the
date of such proclamation, in the court. If these two
conditions are satisfied the court shall make an order for
setting aside the sale under Rule 92(2) of Order 21 CPC on
an application made to it. In other words, then there will be
compliance with the court's order or decree that is sought to
be executed. Because the purpose of Rule 21 is to ensure the
carrying out of the orders and decrees of the court, once the
judgment-debtor carries out the order or decree of the court,
the execution proceedings will correspondingly come to an
end. It is to be noted that the Rule does not provide that the
application in a particular form shall be filed to set aside the
sale. Even a memo with prayer for setting aside sale is
sufficient compliance with the said Rule. Therefore, upon the
satisfaction of the compliance with conditions as provided
under Rule 89, it is mandatory upon the court to set aside the
sale under Rule 92. And the court shall set aside the sale after
giving notice under Rule 92(2) to all affected persons.
(Emphasis supplied)


79. The question which would then arise is whether a transferee
pendente lite of the judgment-debtor would also fall within the scope
of the words “ any person claiming an interest in the auctioned 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
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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 provision. The amendment was also suggested with
a view to prevent an unnecessary investigation into the nature of
interest that an applicant may have. This suggestion is what has
been verbatim adopted by the Amending Act of 1976. The relevant
observations are thus:
“17. What prompted the Parliament to amend Rule 89 of
Order XXICPC in 1976 appears to be certain administrative
and judicial steps taken by the Patna High Court. Even when
the Rule remained in its unamended form, the Patna High
Court introduced a State amendment to that Rule, in its
application to the State of Bihar, substituting the following
text:

“a judgment-debtor or any person deriving title through
the judgment-debtor, or any person holding an interest
in the property at the date of the application under this
rule.”
(in the place of the words underlined portion at page
535)

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18. The said provision has fallen for interpretation before a
Full Bench of the Patna High Court in Onkar Nath Jalan's
case (supra). The Full Bench took note of the background in
which the Patna High Court substituted a different provision
and the division of opinion among various High Courts.
Ultimately, it held that provision as it applied to the State of
Bihar did not warrant that an applicant must prove his title
to the property, before he can seek the relief of setting aside
the sale. After holding so, the Full Bench made the following
observation:

“I may, however, state before parting with the case that
the most comprehensive wording and the one which is
not only consonant with the underlying policy of the
amendments but has besides it, the advantage of
avoiding unnecessary investigation of the nature of
interest is that of the High Court of Lahore, prior to
partition and that of the Nagpur High Court and should
be adopted in our High Court as well. The amendment
stands thus:
“ any person claiming any interest in the
property sold at the time of the sale or at the
time of making the application under this rule
or acting for or in the interest of such a
person .” The decree-holder is interested in getting
his dues. The auction-purchaser while bidding
knows the provision of Order XXI, Rule 89. and
receives the compensation and thereby can have no
grudge as to why the amount of purchase money is
deposited and sale set aside. No one suffers by the
procedure adopted in the 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)
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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 making the application under Rule 89 or, is acting for or
on behalf of the persons having such interest.

83. We have had the benefit of looking into a decision of the Madras
High Court in Vootla Viriah and Others v. Tadepalli Subba Rao
1948 SCC OnLine Mad 287
and others reported in , wherein it was
emphasized that the word “interest” occurring in Rule 89 must be
construed quite liberally. Such an interest which is referred to under
Rule 89 may not be sufficient to enforce any claim to the detriment
of the auction-purchaser or the decree-holder and this is probably
why the interest referred to in this rule, may not be successfully
used to prevent the attachment of the property and defeat the rights
of the decree-holder. However, the object of this rule is very
different - what Rule 89 seeks to achieve is to provide the decree-
holder the amount that he is owed and also compensate the auction-
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purchaser in the course of setting-aside the sale – i.e., to set-aside
the sale while not detrimentally affecting the rights of the decree-
holder or the auction-purchaser. In other words, the decree-holder
is relegated to the same position as if the sale of the property was
not interfered with at all and the auction-purchaser, in whose favour
the sale has not yet been confirmed and rights are not crystallized,
is instead compensated. Therefore, even an inchoate right which a
party may have over the property may be enough to constitute an
“interest” under Rule 89. The relevant observations are thus:
“[…] O. 21, R. 89 should be liberally construed and a
restricted interpretation should not be put upon the words of
that rule.[…]

[…] It may be that the interest may not be sufficient to be put
forward as a shield against the decree-holder's claim, and that
was the-reason why the properties were attached and sold in
execution of the decree. The word “interest” in O. 21. R. 89
has got a very wide import and should be construed very
liberally, as Venkatasubba Rao, J. observed in the case
abovementioned. Any inchoate right which a party may have
over a property may be sufficient “interest” to enable him to
apply under O. 21, R. 89.[…]”
(Emphasis supplied)

84.
The mandate of this rule is further strengthened by the time limit
stipulated by the legislature under sub-rule (2) of Rule 92, wherein
the deposit required under Rule 89 has to 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
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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 as stipulated. The payment of the
deposit by such persons, by itself, is reason enough to stop the sale
of the property from being confirmed. We say so because of two
reasons, first , the deposit is in lieu of the execution of the decree
which is the sole concern of the executing court in such cases, and
secondly , as a sequitur, the deposit of the amount is couched in
mandatory terms alongwith the time limit prescribed, reinforcing
that the sale cannot be set-aside without the deposit, and within
prescribed timeline.


87. Having explained the scope of Rule 89 in the aforesaid manner and
having arrived at the conclusion that a pendente lite transferee of the
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judgment-debtor would also be eligible to make an application
under this rule, we are of the view that even if the respondent nos.
1 and 2 respectively were willing to make the deposit and set-aside
the sale as contemplated under Rule 89 of Order XXI, they were not
in a position to move an application under this rule. This is because
they were put to knowledge about the auction of the mortgaged
property much after the date of confirmation of sale. The sixty-day
time limit which starts running from the date of the sale, had long
lapsed. In other words, the stage of the execution proceedings
during which they could have preferred an application under Rule
89 had already passed.



b. Scope and application of Rule 90 of Order XXI CPC

88. We may now examine the parameters provided for under Rule 90
and whether the respondent nos. 1 and 2 respectively could have
preferred an application under the said rule. Rule 90 reads thus:-

“ 90. Application to set aside sale on ground of
irregularity or fraud. —(1) Where any immovable property
has been sold in execution of a decree, the decree-holder, or
the purchaser, or any other person entitled to share in a
rateable distribution of assets, or whose interests are affected
by the sale, may apply to the Court to set aside the sale on the
ground of a material irregularity or fraud in publishing or
conducting it.

(2) No sale shall be set aside on the ground of irregularity or
fraud in publishing or conducting it unless, upon the facts
proved, the Court is satisfied that the applicant has sustained
substantial injury by reason of such irregularity or fraud.
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(3) No application to set aside a sale under this rule shall be
entertained upon any ground which the applicant could have
taken on or before the date on which the proclamation of sale
was drawn up.

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 facts and circumstances
secondly,
of each case, and such material irregularity or fraud must
be as regards the manner of “ publishing or conducting ” the sale in
execution of a decree.

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91. Along with the aforesaid two-pronged requirement, by virtue of
sub-rule (2) the court must also be satisfied, upon the facts proved,
that the applicant praying for such sale to be set-aside has sustained
a “ substantial injury” “ by reason of ” such material irregularity or
fraud. This sub-rule, apart from indicating that the injury must be
substantial, also denotes that the injury claimed to be suffered by
the applicant must have a direct nexus with the publishing or the
manner in which the sale was conducted.


92. The respondent nos. 1 and 2 respectively, have made several
allegations as regards the manner in which the sale was conducted
including that of the sale being conducted in camera, the auction
price being inadequate etc. However, they are also of the opinion
that the suit property should not have been attached by the
Executing Court in the first place. Therefore, we find it necessary to
examine whether an application under Rule 90 could have been
made to address any grievances pertaining to attachment.

i. The maintainability of an application under Rule 90 vis-á-vis
fraud or irregularities pertaining to stages prior to the
proclamation of sale i.e., at the stage of attachment.

93. In order to make an application under Rule 90, the applicant must
ensure that the ground which they have taken is not one that they
could have raised on or before the date on which the proclamation
of sale was drawn up. This comes as a caution from sub-rule(3) of
Rule 90. Sub-rule (3) must, however, not be read to mean that the
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ground sought to be raised must only be related to a stage which
arrives after the date of drawing up the proclamation of sale. One
must pay careful attention to the words “ grounds which the applicant
could have taken ”. This refers directly to the ability of the applicant to
take the same ground on a prior occasion. Necessary context as to
why the legislature felt the need to incorporate this sub-rule can be
th
derived from the 14 Report of the Law Commission of India (Vol
1. Pg 454-455) which is reproduced thus:
“ 50. Proclamation of sale. Rules 64 to 73 contain
provisions for the sale of property generally. We have dealt
with the notice 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 omitting the item of the court's estimate of the
price. The Patna High Court has made what is in our view a
very wholesome and salutary amendment by adding a proviso
to clause (e) of sub-rule (2) of Rule 66 as follows:

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“Provided that no estimate of the value of the property

other than those, if any, made by the decree- holder and
the judgment-debtor respectively together with the
statement that the court does not vouch for the accuracy
of either shall be inserted in the sale proclamation.”

Similar amendments have also been made by the High Courts
of Calcutta, Madras, Orissa and Punjab. We are of the view
that clause (e) may itself be amended on these lines.

51. Setting aside of sale. Under Rule 90 a sale of immovable
property in execution of a decree can be set aside on the
ground of material irregularity or fraud in publishing or
conducting the sale. The right to apply under this Rule is
given to the decree-holder or to any person entitled to a share
in the rateable distribution of assets or whose interests are
affected by the sale. It is generally accepted that a large
percentage of applications made by the judgment-debtors to
set aside, sales under this Rule are frivolous and are filed with
the object of delaying the delivery of possession. It is therefore
necessary to make an amendment in Rule 90 by providing
that no sale shall be set aside on the ground of any defect in
the proclamation of sale at the instance of any person who did
not attend, though given notice to appear at the drawing up
of the proclamation or of any person in whose presence the
proclamation was drawn up, unless an objection was taken
by him before the sale was held. Following the
recommendations of the Uttar Pradesh Judicial Reforms
Committee the High Court of Allahabad has added sub-rule
(2) to Rule 90 providing for an award of costs to the decree-
holder or auction-purchaser or both as against the party
whose application under Rule 90 has been rejected. Another
useful amendment made by the Allahabad High Court in sub-
rule (1) is to the effect that the application to set aside a sale
shall not be entertained unless the applicant deposits such
amount not exceeding 12 per cent of the sum realized at the
sale or furnishes such security as may be fixed by the court,
except when the court for reasons to be recorded dispenses
with the requirements of this clause. This provision is
presumably made in order to compensate the purchaser.
Under Rule 89 the applicant at whose instance the sale is set
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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
of sale must not be made in an application under Rule 90 at the
instance of those persons who did not attend the drawing up of the
proclamation of sale despite a notice being served upon them, or by
those persons who were present during the drawing up of the
proclamation, unless an objection was taken before the sale was
conducted.

th

95. These issues which were identified in the 14 Report were remedied
by the insertion of sub-rule (3) in Rule 90 which stated that the
objections which could have been taken on or before the date on
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which the proclamation of sale was drawn up, cannot be brought
under Rule 90. The reason behind clarifying this was to fend off such
individuals who may unnecessarily and with a view to prevent the
sale from being confirmed, prefer an application under Rule 90,
when they could have very-well raised their objection at the
appropriate time and stage.


96. A recent decision of this Court in G.R. Selvaraj (Dead), through LRs
v. K.J. Prakash Kumar and Others reported in 2025 INSC 1353
emphasized that as per the mandate of sub-rule (3) of Rule 90, an
applicant cannot, at a belated stage, seek to assail an auction sale,
particularly when there existed a prior opportunity to raise the same
objection before the proclamation of sale was drawn up. Therein,
the applicant had ample opportunity to raise the ground that the
entire property need not be sold to satisfy the decree even before the
date of the last proclamation of sale. Therefore, it was held that one
who has acquiesced despite being put to notice would be precluded
from assailing the legality or correctness of the same thereafter. The
relevant observations are thus:

“17. Given the insertion of Order XXI Rule 90(3) in the
statute book with effect from 01.02.1977, it would be
incumbent upon a judgment debtor or any other interested
person who applies for setting aside an execution sale, held
thereafter, to satisfy the executing Court that the ground
upon which the application was made could not have been
taken on or before the date on which the proclamation of sale
was drawn up. In effect, if such a ground could have been
taken by that applicant who seeks setting aside of the sale but
he failed to do so at the appropriate stage, he would stand
barred, by Order XXI Rule 90(3) CPC, from doing so at a
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subsequent stage. It is in this context that the aforementioned
observations 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 effect.
The record clearly negates their claim in that regard. Having
failed to raise a material irregularity in the context of Order
XXI Rule 66(2)(a) CPC at the appropriate stage, i.e., with
regard to sale of a part of the property being sufficient to
satisfy the decree, it is not open to them to now raise such a
belated plea and blithely place the burden on the executing
Court, so as to seek setting aside of a sale held as long back as
in the year 2002. Unfortunately, the High Court, having
noted the bar postulated by Order XXI Rule 90(3) CPC in
para 31 of the impugned judgment, failed to give effect to it
assuming that the obligation under Order XXI Rule 66(2)(a)
CPC would operate independently upon the executing Court,
irrespective of the lapse on the part of the judgment debtors. ”
(Emphasis supplied)

97.
Finally, the Explanation to Rule 90 also takes forward this
underlying theme that an irregularity or fraud pertaining to stages
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prior to the drawing up of the proclamation of sale could also be
brought within the ambit of Rule 90, provided an opportunity to
raise the same did not exist earlier. It states that “ 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 ”. It is necessary for us to
understand the import and rationale behind this Explanation to
ascertain whether grievances which specifically relate to attachment
can be brought within the ambit of Rule 90. If yes, then what kind?

th

98. The 27 Report of the Law Commission (Vol 1, pg 206-207) had
made some observations regarding the explanation which came to
be added to Rule 90. They are as follows:

“ Order XXI, rule 90 and absence of attachment
The question whether absence of, or irregularity in
attachment is, a defect in the "publication or conduct of the
sale" has been discussed in several decisions. At one extreme
is the view that attachment is not necessary at all before sale.
At the other extreme stands the view that sale without
attachment is void. A third view is, that attachment is an
irregularity, but not in publishing or conducting the sale.
According to the fourth view, a sale is not a nullity because
of a defect in the attachment or want thereof, but if it causes
"substantial injury", it can be set aside under rule 90. The
last view seems to be the correct one. The object of 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.

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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)
th

99. The 27 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.,
the first view was that an attachment is not necessary at all for
conducting a sale and the second view was that a sale conducted
without an order of attachment is void and a nullity. A third view
was that matters pertaining to attachment would constitute an
irregularity but would, however, remain outside the scope of Rule
90 since they would not amount to an irregularity in “publishing or
conducting the sale”. The Law Commission found merit in an
alternate fourth view which stated that a sale which has been
conducted in the absence of attachment or a defect in attachment
must not automatically be considered as null and void. Such a defect
in the attachment or the want thereof, must cause substantial injury
for Rule 90 to be applicable to it.


100. Therefore, the Law Commission subscribed to the idea that
irregularities pertaining to attachment must not completely be taken
away from the purview of Rule 90. This is plainly evident from its
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implicit disagreement with the third view taken by a few decisions,
as aforementioned. However, it was emphasized that a sale would
be set-aside, only if the defect in the attachment or the absence of
attachment, causes “ substantial injury ” to an applicant under Rule
90. Meaning thereby, that if the process involved in publishing or
conducting the attachment of a property is riddled with a material
irregularity or fraud, interference can be justified under Rule 90 if
substantial injury is proved. The intention was that, just the mere
pointing out of the absence of attachment or a defect in attachment,
by itself, must not be construed as nullifying the entire sale and
thereby, giving rise to substantial injury as a very natural
consequence. In other words, substantial injury is not automatic or
implicit in these scenarios. If it were assumed so, then all
applications under Rule 90 pertaining to such facts and
circumstances would always be allowed and the sale would be set-
aside. That would be a very extreme position to take. Due emphasis
must be placed on the words “ mere ” present in the Explanation to
reconcile the wording of the Explanation with the aforesaid
intention of the Law Commission. This indicates that, apart from
pointing out the defect in the process of attachment or the absence
of attachment itself, one must move a step forward and also
specifically plead as to how substantial injury has been caused,
similar 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.

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th

101. The fourth alternate view endorsed by the 27 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 to attach is a material irregularity
which renders the sale liable to be set aside under O. 21, R.
90 if substantial injury is proved.

Are the plaintiffs then entitled to avoid the sale to
Sundararaja Pillai so far as their shares are concerned? Their
father, the first defendant, failed to take any steps to have the
sale set aside under O. 21, R. 90 on account of the
irregularity, presumably because no substantial injury had
resulted. Nor did they avail themselves of that remedy which
was open to them also as “persons whose interests are affected
by the sale.” [See Bubaneshwar Prasad Narayan
Singh v. Biharilal]. Even in the present proceedings they
have not attempted to prove any substantial injury by reason
of the attachment having ceased to be in force at the time of
the order for sale.

If omission to attach does not affect the jurisdiction of the
Court to sell and is a mere irregularity, the purchaser's title
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cannot, as it seems to us, be displaced by any antecedent
irregularity in publishing or conducting the sale except by
resort to the statutory remedy provided by O. 21, R. 90. That
remedy not having been availed of, the purchaser's title has
become unassailable and the appeals must fail.”
(Emphasis supplied)

th
102. The 54 Report of the Law Commission of India (Vol 1, pg 186)
th
took the discussion made in the 27 Report forward and suggested
that the Explanation, as we see it today, be inserted in Rule 90 in
order to put the matter to rest and obviate any further confusion.

103.
That rule 90 concerns itself with material irregularities and fraud
occurring in the process of sale and those causing substantial injury,
at any stage of the sale, even prior to the proclamation of sale, is also
brought forth from the decision of this Court in Satyanarain
Bajoria and Another v. Ramnarain Tibrewal and Another reported
in (1993) 4 SCC 414. Therein, after the decree was passed, the
judgment-debtor deposited the decree amount in satisfaction of his
debt. However, after about three years, the decree-holder had filed
an application before the executing court claiming an additional
amount. In execution of this application, the property of the
judgment-debtor came to be sold. It was of note that the decree-
holder himself had purchased the property in the auction sale.
Furthermore, before the expiry of the sixty-day period as provided
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
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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 bound to issue
notice and serve notice of the execution application on the
judgment-debtor as provided for in Order 21 Rule 22 of the
Code which contemplates inter alia that if an application for
execution is made more than two years after the date of the
decree, the court executing the decree shall issue a notice to
the person against whom execution is applied for requiring
him to show cause, on a date to be fixed, why the decree should
not be executed against him. The last order made in the earlier
execution application was on November 29, 1965 and the
second execution application was filed more than two years
thereafter i.e. in 1968. Therefore, issuing of notice under
Order 21 Rule 22 was mandatory. The idea of issuing such a
notice is to ascertain whether the averments as to the amount
being claimed in the execution application are true or
incorrect. Besides, even if the amount was due, the judgment-
debtor could have paid it and he was deprived of this
opportunity to clear off dues, if any, under the decree. It is
only after the service of notice under Order 21 Rule 22 of the
Code and failure of the judgment-debtor to pay the decretal
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amount, as claimed, that the decree-holder takes recourse to
proceedings under Order 21 Rule 54 of the Code. […]

14. It will be noticed that sub-rule (1) of Rule 54 of Order 21
of the Code contemplates an order of prohibition to be served
on the judgment-debtor from transferring or charging the
property in any way first if the property sought to be sold is
immovable property. This is for the benefit of the decree-
holder. Even at this stage if the judgment-debtor had notice
of attachment, he could pay the balance decretal amount and
thereafter attachment would either not be effected and if
already effected would be vacated. Sub-rule (1-A)
contemplates that this order shall also require the judgment-
debtor to attend court on a specified date, to take notice of the
date to be fixed for settling the terms of the proclamation of
sale provided under Rule 66 of Order 21 of the Code. There
was no evidence that the judgment-debtor was personally
served with such a notice. Though sale proclamation after
settlement of terms of proclamation ex parte was published in
local newspaper Dalit Mitra but that gave wrong case
number and wrong name of the court. There was also no
evidence that any notice was affixed on a conspicuous 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
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person having interest in the property sold, to file an
application to set aside sale on making deposit as
contemplated by Rule 89.
15. The lower appellate court after assuming that there was
no proper service of notice under Order 21 Rule 54 of the
Code of Civil Procedure went on to the question of judgment-
debtor's having not pleaded any substantial loss or injury. It
will be noticed that it was a case of typical money lender who
has evil-eye to grab the property of the judgment-debtor
somehow or the other. He allows the first application for
execution to be dismissed; waits for practically three years to
file another execution application claiming a sum of Rs 350
only; sees to it that judgment-debtor is kept ignorant of the
proceedings in court; obtains permission to himself buy the
property; gets the property sold for recovery of petty amount
of Rs 649.45ps and buys the property himself. This again is a
typical illustration of fraudulent conduct of decree-holder. In
such cases the court will even presume loss and substantial
injury to the judgment-debtor. In the present case there was
evidence of value of the property and both the parties had led
evidence in this behalf and it was too late for the lower
appellate court to blame the executing court for recording
evidence as to the valuation at that stage. The fraud
permeates the whole proceedings. At no stage was the
judgment-debtor made aware of the pending execution
application till even the confirmation of sale and purchase of
the property by the decree-holder himself.

17. […] It is true that now it has been specifically clarified by
the Explanation to Rule 90 of Order 21 of the Code that “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”. But if the judgment-debtor is kept totally ignorant
of the execution proceedings right from the date of execution
application till sale, it cannot be merely called a mere
irregularity in attachment and thus of no consequence.

18. The facts of the case show that the lower appellate court
totally missed the points which were required to be
determined and merely by assuming that even if notice under
Order 21 Rule 54 of the Code is not served, by virtue of
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explanation to Rule 90 of Order 21 of the Code it is not a
material irregularity or illegality to auction sale. The lower
appellate court 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
convince that substantial injury has been caused. Only then can it
fall within the ambit of Rule 90.

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ii.
Questions on whether the judgment-debtor had any “saleable
interest” over the attached/sold property cannot be brought
under the ambit of Rule 90

106. However, the scope of Rule 90 as elaborated in the aforesaid
paragraphs must, by no means, be read to mean that a grievance
that the judgment-debtor did not have any title to the attached
property, can be raised by an applicant under Rule 90. This would
squarely fall within the scope of Rule 58 wherein one is entitled to
make a claim or raise objections “ on the ground that such property was
not liable to attachment ”. The same would be beyond the purview of
Rule 90 also for the reason that under this rule the executing court,
unlike Rule 58, does not have the expanded scope to decide all
questions relating to the right, title, or interest arising between the
parties to the proceeding.

107. There exists a fine but pertinent distinction between the questions –
whether the attachment and/or sale of the immovable property
could have been ordered by the executing court and whether the
manner in which such attachment and/or sale has taken place, was
proper or not. The former directly refers to a dispute pertaining to
whether the immovable property could be attached or sold for the
purpose of satisfaction of decree, whereas the latter refers to ‘how’
such attachment or sale is effected for the purpose of satisfying the
decree. It is only the latter which is covered by Rule 90.

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108. To buttress the aforesaid, we may look into the decision of High
Court of Allahabad in Ch. Syed Iqbal Husain v . Rameshwar Dayal ,
reported in 1972 SCC OnLine All 288 , wherein the Court held that
the question as to whether the property was saleable in execution of
the decree or in other words, whether the judgment-debtor had a
saleable right in the immovable property was neither a question of
fraud nor a question of material irregularity, and hence, would be
beyond the scope of Order XXI Rule 90. The relevant observations
read thus:-
“ 7. The next question which was pressed in this appeal was
that the plea now raised by Iqbal Husain is barred by
constructive res judicata. In so far as the plea that the
property in dispute was not saleable, was not taken by Iqbal
Husain in his objection which he filed under Order 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 was the personal
property of Iqbal Husain. Such a question, in my opinion, is
beyond the ambit of Order 21, Rule 90 of the CPC.”
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(Emphasis supplied)

109. This Court in Kadiyala Rama Rao v. Gutala Kahna Rao and Others
(2000) 3 SCC 87
reported in had similarly emphasized that the issue
of absence of a saleable interest cannot be introduced as a ground
under Rule 90. The relevant observations are as follows:

“10. The provisions of Order 21 Rule 90 thus categorically
envisage that material irregularity and fraud alone would
confer jurisdiction on to the executing court to set aside the
same. […] Needless to record here that there is no evidence of
fraud or material irregularity, neither even an allegation in
regard thereto. The only issue was of saleable interest for a
period of 15 years since the deed of sale as executed by the
Municipality of Rajamundhry in favour of the judgment-
debtor, contained a condition that the property cannot be
alienated by the judgment-debtor for a period of 15 years. It
is to be noticed at this juncture that question of saleable
interest does not come within the ambit of Order 21 Rule 90
and as such the judgment-debtor had no locus standi to apply
to the court for setting aside the sale. In the present factual
context, statute recognises such a locus standi only in the
event of material irregularity or fraud and not otherwise.
Apart therefrom, saleable interest can only be challenged by
the purchaser and not by the judgment-debtor since the
purchaser's right would otherwise be clouded therewith by
reason of there being no saleable interest in the property so
far as the judgment-debtor is concerned. Order 21 Rule 91 is
specific on this score and a right has been conferred on to the
purchaser only.

14. […] The learned Single Judge erroneously proceeded on a
certain misconception of facts as also of law by reason of the
factum of challenge of sale being on the ground of saleability.
Order 21 Rule 90 does not envisage the issue of saleability
and the learned Single Judge was in error in introducing such
a concept under Order 21 Rule 90 of the Code. In any event
as noticed above the issue of “saleable interest” can only be
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agitated by the purchaser in terms of Order 21 Rule 91 and
not in any event by the judgment-debtor. The ground of
challenge is specific in the provision itself, namely, material
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 portion of the entire mortgaged
property sold by way of auction and confirmed in favour of the
appellants herein.


111. Although much has been canvassed on behalf of the respondent
nos. 1 and 2 respectively that the auction was conducted in an
irregular manner inasmuch, as the auction process was conducted
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in secrecy, the property was undervalued and was eventually sold
off to the relatives of the judgment debtor, yet these reasons do not
constitute the actual grievance of the respondent nos. 1 and 2
respectively. In other words, there was no “ substantial injury ” which
was caused to them by reason of these alleged irregularities.

112. Why an application under this rule could not have been maintained
may be better understood from one another angle. Had the auction
in the present case been conducted in the prescribed manner, in
accordance with Order XXI, even then, the respondent nos. 1 and 2
respectively would have been aggrieved. We say so because the
source of their grievance is the attachment and sale of the suit
property; the source is not the manner in which the sale was
conducted. In other words, the injury that may have been sustained
by the respondent nos. 1 and 2 respectively cannot be said to stem
from the aforesaid alleged irregularities in the sale, but rather by the
deceptive manner in which the judgment-debtors allowed the suit
property to be attached by the Executing Court under Rule 54 of
Order XXI, despite the fact that one of them had already sold the
same to the respondents nos. 1 and 2 respectively. However, we
have already explained that an issue regarding the saleability of the
property or the title of the judgment-debtor to the property, could
not be brought within the ambit of Rule 90.

113.
The respondent nos. 1 and 2 respectively have also made averments
that, at all stages of the execution proceedings they were
deliberately kept in the dark. Therefore, it was not just the secretive
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nature of the auction sale, the undervaluation of the property and
the relationship of the auction-purchasers with the judgment-
debtors that rendered the entire process doubtful, but that notices
even during prior stages of the execution proceedings were also not
served upon them. Hence, the auction sale was entirely bad for
having been done at their back and expense. We have explained that
irregularities pertaining to stages prior to the proclamation 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 specifically
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pleaded that there were material irregularities in the aforesaid
context and that therefore, that they were put to any substantial
injury. In the absence of such a specific pleading, it would not be
open to the executing court or for us to assume the contrary. [ See :
Ram Maurya v . Kailash Nath and Others , (1999) 9 SCC 276 ]

116. No specific pleading is evident from the record especially as regards
non-compliance with Rules 54 and 67 respectively and insofar as the
other alleged irregularities specifically mentioned in the plaint are
concerned, we have already explained as to how they could not
have caused substantial injury to the respondent nos. 1 and 2
respectively. Therefore, the twin conditions for setting aside any
sale under Rule 90, i.e., (i) material irregularity or fraud in
publishing or conducting the sale AND (ii) substantial injury being
sustained by reason of such irregularity or fraud, cannot be said to
have been fulfilled. In light of the aforesaid, we are of the view that
the respondent nos. 1 and 2 respectively could not have maintained
an application under Rule 90 of Order XXI CPC.

117. Another aspect of the matter is also that, the order of sale declaring
the appellants as the highest bidders was issued on 20.06.1998 and
as per Article 127 of the Limitation Act, 1963, the time-limit to prefer
an application under Rule 90 would be sixty days from the date of
the sale. The same would have lapsed on 20.08.1998 and any delay
could not have been condoned. Therefore, limitation would have
also come in the way of any application under Rule 90 that the
respondent nos. 1 and 2 respectively may have preferred. [ See :
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v
Aarifaben Yunusbhai Patel and Others . Mukul Thakorebhai Amin
and Others , (2020) 5 SCC 449 ]

III. Whether the respondent nos. 1 and 2 respectively, could have
maintained a separate suit in light of the bar envisaged under
Rule 92(3) of Order XXI CPC and Section 47 CPC respectively, and
whether they are “ third parties ” as referred to under Rule 92(4) of
Order XXI CPC?

a. Scope and application of Rule 92 of Order XXI CPC

118. Order XXI Rule 92 reads thus:-
“ 92. Sale when to become absolute or be set aside.—(1) Where
no application is made under rule 89, rule 90 or rule 91, or
where such application is made and disallowed, the Court
shall make an order confirming the sale, and thereupon the
sale shall become 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:

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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 an order made under this rule shall be
brought by any person against whom such order is made.

(4) Where a third party challenges the judgment-debtor’s title
by filing a suit against the auction-purchaser, the decree-
holder and the judgment-debtor shall be necessary parties to
the suit.

(5) If the suit referred to in sub-rule (4) is decreed, the Court
shall direct the decree-holder to refund the money to the
auction-purchaser, and where such an order is passed the
execution proceeding in which the sale had been held shall,
unless the Court otherwise directs, be revived at the stage at
which the sale was ordered. ”

119. Order XXI Rule 92 governs the circumstances in which the sale of
an immovable property attains finality and becomes absolute or,
conversely, stands set-aside by the executing court. No separate
application is required to be made to the executing court for this
purpose.

120.
Sub-rule (1) of Rule 92 clearly states that where no application is
filed under Rules 89, 90, or 91 respectively within the prescribed
period of limitation, or where any such application is filed but
disallowed, the executing court shall proceed to pass an order
confirming the sale, upon which the sale shall become absolute. In
other words, where the remedies under Rules 89 to 91 respectively
are not invoked or do not succeed, the sale stands confirmed.
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121. The proviso to sub-rule (1) of Rule 92 takes care of a situation where
the order of sale has been passed while an application under Rule
58 raising a claim or an objection as regards the attachment of the
property sold, is still pending adjudication. While the process of sale
by itself does not come to a halt solely owing to an application being
filed under Rule 58, the executing court stands barred from
confirming the sale until such an application under Rule 58 is finally
disposed. This is also due to the fact that upon an order of
confirmation of sale being passed, the same becomes absolute and
immune from being assailed under any rule preceding rule 92.
Therefore, it becomes the duty of the executing court to ensure that
no application remains pending or undecided when it is making its
decision under Rule 92(1).


122. Rule 92(1) being couched in a mandatory language reflects that the
executing court is cast with an obligation to pass an order
confirming the sale when the requisites mentioned 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.


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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 91 respectively or confirming a sale under Rule 92(1)). Moreover,
this sub-rule to Rule 90 also fortifies that there should be some
sanctity granted to a sale which has been conducted in execution of
a decree in case it comes to be confirmed and it indirectly reinforces
the weight of the words “ the sale shall become absolute ” occurring in
sub-rule (1) of Rule 92.


125. On the other hand, when an order setting aside the sale has been
passed under sub-rule (2) of Rule 92, some finality is, again,
required to be accorded to it (subject to an appeal against the order
allowing an application under 89, 90 or 91 respectively or setting-
aside the sale under Rule 92(2)). It is ensured that such an order
setting aside the sale is not subject to further litigation by way of a
separate suit and there remains no unnecessary delay in moving
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ahead with or resuming the execution process to enable the decree-
holder obtain the fruits of his decree. To put it simply, seeking to
either set aside an order confirming the sale under sub-rule (1), or
to set-aside an order setting aside a sale under sub-rule (2), both, by
instituting a separate suit, is barred.

126. Sub-rule (3) only foists this bar on “ any person against whom such an
order is made ”. The breath of this bar to filing a separate suit is,
therefore, only applied to those persons against whom an order
either confirming or setting-aside the sale, operates. The decisions
of several High Courts have interpreted the extent of the operation
of this bar based on the unique grounds which have been raised in
the facts and circumstances of each case, and rightly so.

127. However, what appears to be the general rule is that - (a) any person
who has already filed an application under Rules 89, 90 and 91
respectively, and the same has been disallowed, cannot re-agitate
their grievances by instituting collateral proceedings once the sale
has been confirmed; and (b) any grievance pertaining to grounds
which are covered under Rules 89, 90 and 91 respectively, cannot be
brought in by way of a separate suit after the sale has been
confirmed, especially when such a person instituting the suit was
competent to maintain an application under Rules 89, 90 or 91
respectively, had they preferred it within the time stipulated under
Article 127 of the Limitation Act, 1963.

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128. With a view to elaborate on (a), it is obvious that it embodies 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 situation, the bar under sub-rule (3) of Rule 92 would
squarely apply to a separate suit preferred by the same
applicant seeking to set-aside the order confirming the sale by
alleging irregularities or fraud in publishing or conducting the
sale.
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iii. Illustration 3 : Say, the application under Rule 90 was dismissed
because the applicant sought to raise the issue that the
judgment-debtor did not have any saleable interest in the
property. This application came to be disallowed for the reason
that such questions cannot be gone into by the executing court
under Rule 90. Here, the bar under sub-rule (3) of Rule 92
would not apply to a separate suit instituted by the same
applicant challenging the title of the judgment-debtor. This is
because the question of saleable interest was raised under the
misapprehension that Rule 90 would cover an adjudication of
the same. Such an applicant must not be prevented from raising
his grievance before a competent forum, even after the sale is
confirmed.

129. We have emphasized on placing the scenario covered under the
third illustration beyond the bar under sub-rule (3) of Rule 92, in
light of our exposition of law as regards Rule 90 of Order XXI CPC.
Under the scenario mentioned in third illustration, the
maintainability of a separate suit would also depend on whether the
applicant under Rule 90 was a party to the original decree or his
representative (as understood under Section 47 CPC) or whether
they were a third party. It is only in the latter case where, the party
is a third party, can one maintain a separate suit in that regard. We
would further elaborate on the reasoning behind holding so, in the
subsequent paragraphs of this judgment by discussing the scope of
Section 47 and also the meaning of the words “third party”
occurring in sub-rule (4) of Section 92.
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130. On the aspect referred to in (b), we say that someone who was
competent to prefer an application under Rules 89, 90 or 91
respectively, but did not raise it at the appropriate time i.e., within
the limitation period prescribed under Article 127 of the Limitation
Act, 1963, would also be covered by the bar under sub-rule (3) of
Rule 92. This is because the relief envisaged under the aforesaid
rules are strictly time-bound and according to Article 127 of the
Limitation Act, 1963, the prescribed period of limitation would start
running “ from the date 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.
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131. In addition to the aforesaid, it must be noted that sub-rule (1) of Rule
93 states that “ where no application is made under rule 89, rule 90, or
rule 91 ”, the sale would be confirmed. If it was the intention of the
legislature to allow grounds or grievances which could have very-
well been brought under Rules 89, 90 or 91 respectively, to also be
brought under a separate suit, then there would have been no
reason for such a phrase to be inserted in the first place. If such a
phrase was omitted by the legislature, then there may have been
some scope for an individual to state that they could not prefer an
application under Rules 89, 90 or 91 respectively, for the want of
knowledge of the proceedings, and that therefore, they must be
allowed to institute a separate suit in that regard; that otherwise
great prejudice must be cause to such a plaintiff. However, it is
almost as if the legislature had foreseen such a defence and
therefore, deemed it fit to clarify that even if such an application
under Rules 89, 90 or 91 was not preferred, the sale would be
confirmed, and the clock would not be turned back. Having
acknowledged that this phrase has been inserted with a specific
purpose, we must not render it otiose by allowing the same grounds
to be raised under a separate suit and dilute the intent that is
manifest from a combined reading of this phrase with sub-rule (3)
of Rule 92 i.e., that there is only a small window of time within
which such grounds falling under Rules 89, 90 or 91 respectively,
can be taken. In this regard, Mr. Vikas Singh would be right in
submitting that an aggrieved party must not be able to circumvent
or indirectly overcome the limitation prescribed for an application
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under Rule 90 and be allowed to institute a separate suit on the same
grounds.

132.
To further buttress the aforesaid, we may look at the decision of the
Basanta Mal v. Behari Lal and
Punjab and Haryana High Court in
1952 SCC OnLine Punj 115
Another reported in . Therein, no
application was made under Rules 89, 90 or 91 respectively and
consequentially, the auction sale was confirmed. After more than 10
years, the appellant instituted a suit, which amongst other reliefs,
prayed that the auction be set-aside for being fraudulent. The
respondent took recourse to sub-rule (3) of Rule 92 to submit that
the suit was barred. Finding merit in the said submission, it was
observed that the objections 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)
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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 OnLine Bom 20 wherein it was observed that when all
the grounds set out in the plaint fell under the scope of Rule 90, and
having failed to prefer the said application before the sale was
confirmed, the suit would be barred under sub-rule(3) of Rule 92.
The relevant observations are thus:
“[…] If the plaintiffs wanted to have the sale set aside on the
ground of such an irregularity, the only course open to them
was to make an application under O. XXI, r. 90, of the Civil
Procedure Code. But they failed to make such an application
and allowed the sale to be confirmed by the Collector under
O. XXI, r. 90 [sic r. 92], sub-r. (1). There is no ground set
out in the plaint which is not covered by O. XXI, r. 90 of the
Civil Procedure Code. Hence the present suit is barred under
O. XXI, r. 92, sub-r. (3) of the Civil Procedure Code and the
learned District Judge was wrong in setting aside the
dismissal of the suit and remanding it for further hearing.”
(Emphasis supplied)
134.
In Siddagangaiah (supra) as well, one of the issues pertained to
whether the dismissal of an application under Rule 90 for default of
appearance, could operate as a bar to the filing of a separate suit by
the same applicant. This Court answered in the affirmative, and
observed thus:

“23. Where an application has been filed under Rule 90
Order 21 CPC to set aside a sale on the ground of material
irregularity, and the sale is confirmed under Rule 92(1) of
Order 21, the objector is precluded by virtue of the provisions
under Order 21 Rule 92(3) from bringing a suit to set aside
the sale on the same grounds as held in Kalianadhahotla
Brahmayya v. Maria Appayya Sastri [Kalianadhahotla
Brahmayya v. Maria Appayya Sastri, 1920 SCC OnLine
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Mad 212 : ILR (1921) 44 Mad 351 : AIR 1921 Mad 121 : 62
IC 203] , Ma Saw v. Maung Kyaw Gaung [Ma
Saw v. Maung Kyaw Gaung, 1927 SCC OnLine Rang 58 :
AIR 1928 Rang 18] and Nand Kishore v. Sultan
Singh [Nand Kishore v. Sultan Singh, 1925 SCC OnLine
Lah 293 : AIR 1926 Lah 165] .
24. […] There can be restoration of the petition dismissed for
default filed under Order 21 Rule 90 and thereafter if sale has
been confirmed, it is provided under Order 21 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 21 Rule 92(1) provides that where an application 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 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 21 Rule 92(3) CPC would operate as a bar for
the entertainment of the fresh suit on the ground so urged.
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26. 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 21
Rule 90(1) CPC 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 21 Rule 90 CPC. Dismissal of
the same would preclude him to file a fresh suit[…]”
(Emphasis supplied)
135. When no application has been made under Rule 90 and a suit is
preferred directly to assail an auction sale conducted in execution of
a decree, courts have attempted to adopt a balanced approach in
deciding whether the suit was maintainable or not. While, on the
one hand, courts have taken a strict approach in situations where
the grounds which fall under Rules 89, 90 or 91 are being raised in
a separate suit; on the other hand, in cases where the executing court
did not have jurisdiction to sell the properties in the first place and
therefore, the sale as a whole was rendered, a nullity, several
decisions have leaned in favour of holding the separate suit
maintainable. To curb any misuse of this leeway granted in the latter
situation, over the period of time, the discussions reflected in the
various law commission reports and the coming into force of the
1976 amendment respectively, have shown us that several grounds
which were earlier interpreted as rending the whole sale a nullity
were clarified as only being irregularities which would fall under
the scope of Rule 90 instead. As a result, this progressively
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narrowed down the already small scope which existed for the filing
of a separate suit.


136. An example of allowing the filing of 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 preliminary issue by holding that it is not
maintainable in view of the bar under Rule 92(3) of Order
XXI of the Civil Procedure Code. While deciding the issue
regarding the maintainability of the suit the trial court ought
to have first considered whether the provisions of Order XXI,
Rules 92 sub-clause (3) were applicable to the property in
question. If there is prima facie evidence to indicate that the
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said property was not the subject matter of the auction which
was held, in that case, the provisions of order XXI Rule 89,
90, 91 and 92 would not apply at all and the Executing
Court, therefore, would not be justified in including the
property which is not auctioned or sold in auction and
include such property in its order of confirmation of sale. In
my view, therefore, it the sale itself had not taken place in
respect of a particular property the confirmation of the sale of
such property need not arise. Such an order could be
challenged in the second suit on the ground that it is non est.
All these questions, therefore, ought to have been decided by
the trial court along with other issues which were raised by
the parties in respect of the property described in 2(f). The
submission of the learned Counsel appearing on behalf of the
respondents that the issue whether the suit is barred under
the provisions of Order XXI, Rule 92(3) is a pure question of
law and, therefore, it would be decided by the trial court as a
preliminary issue cannot be accepted. In a given case, if the
plaintiffs are in a position to show that the property which is
not sold in auction is referred in the final confirmation of sale
under Order XXI, Rule 92(1) then the said issue would
become a mixed question of fact and law and the Court would
be required to decide the issue after considering the factual
aspect of the case and the oral and documentary evidence
which is brought on record and, thereafter, decide whether the
bar under the aforesaid section should be made applicable or
not. If such a question which is a mixed question of fact and
law is to be decided by the trial court then, in my view, it
would be appropriate to decide all other issues which have
been raised and framed by the trial court. For the aforesaid
reasons, in my view, both the lower Courts have committed
an error in not deciding the preliminary issue in respect of
the property described in para 2(f) along with other issues
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)
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137. In a situation akin to that of Savitri Poto Gaonkar (supra), where
the entire sale is alleged to have been without jurisdiction and
non-est,
therefore, a nullity or 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 bar under
Rule 92(3), one must also be mindful of the fact that the words “ and
not by a separate suit ” finds mention under Section 47 as well.
Therefore, courts have to consider the interplay between allowing
the filing of a suit and the possibility of raising such an issue under
Section 47 CPC.

c. The interplay between the bar to a separate suit as provided
in Rule 92(3) of Order XXI CPC and the bar to a separate suit
referred to under Section 47 CPC.

139. Mr. Vikas Singh would submit that the Trial Court also lacked
jurisdiction to entertain the suit filed by the respondent nos. 1 and 2
respectively, in light of the bar to the filing of a separate suit
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envisaged under Section 47 CPC. The questions raised in the suit,
according to him, directly related to the execution of the original
decree which lies under the exclusive domain of the executing court.
He further submitted that the impugned decision had clearly
declared the respondent nos. 1 and 2 respectively to be
representatives of the judgment-debtor and therefore, the bar under
Section 47 would squarely apply to them.

140. Section 47 CPC reads as follows:

“ 47. Questions to be determined by the Court executing
decree.— (1) 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.

(3) Where a question arises as to whether any person is or is
not the representative of a party, such question shall, for the
purposes of this section, be determined by the Court. 2

Explanation I.—For the purposes of this section, a plaintiff
whose suit has been dismissed and a defendant against whom
a suit has been dismissed are parties to the suit.
Explanation II.—(a) For the purposes of this section, a
purchaser of property at a sale in execution of a decree shall
be deemed to be a party to the suit in which the decree is
passed; and
(b) all questions relating to the delivery of possession of such
property to such purchaser or his representative shall be
deemed to be questions relating to the execution, discharge or
satisfaction of the decree within the meaning of this section. ”


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141. A bare perusal of Section 47 makes it clear that all the questions
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 hand, Section 47
envisages a bar which is wider in scope and states that any (other)
question pertaining to the execution, discharge or satisfaction of a
decree which is arising between the parties to the original suit or
their representatives, must not be raised in a separate suit. This
enlarged scope of application of Section 47 is probably why parties,
on several instances, file simpliciter applications under Section 47.

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143. What we are trying to say is that there may also arise unique
situations where the party cannot file a separate suit to set-aside the
order of confirmation of sale owing to the bar under Rule 92(3), yet
they may be able to prefer an application under Section 47 to allege
that the entire sale was without jurisdiction or a nullity. To put it
simply, although someone could be covered under the bar to a
separate suit referred to in Rule 92(3), yet they may very well
maintain an application under Section 47 CPC. For example, consider
a scenario where a judgment-debtor has already paid the decretal
amount but his property is nevertheless sold in the auction sale and
the auction sale is also confirmed – he would not be able to file a
separate suit owing to him being a person against whom the order
confirming the sale was passed under Rule 92(1) and thereby, he
would fall under the bar specified in Rule 92(3). However, he would
be able to prefer an application under Section 47 CPC on the ground
that the entire sale was a nullity. In such a situation, both the bars to
a suit i.e., the bar under Rule 92(3) and the bar under Section 47 CPC,
would interact and prevent the filing of a separate suit while
making the option of preferring a simpliciter application under
Section 47 CPC available to him. In such cases, the appropriate
course of action would be to prefer an application under Section 47
and not institute a separate suit.


144. However, the aforesaid must not be construed to mean that when a
party is unable to raise the grounds mentioned under Rules 89, 90
or 91 respectively within the limitation as prescribed under Article
127 of the Act, 1963, they can file an application under Section 47
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CPC after the sale has been confirmed by reiterating those same
grounds falling under Rules 89, 90 or 91 respectively. In such cases,
the executing court would look at the averments made in the
application and the grounds raised therein. Where upon 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 could as a whole be rendered a nullity have
been narrowed over the period of time and grounds which may,
say, fall under Rule 90, could not be camouflaged as those rendering
the entire sale a nullity or non-est.
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146. The reason we have endeavored to explain the aforesaid is simple -
that in order to maintain a separate suit, merely overcoming the bar
under Rule 92(3) would not be enough, one must also satisfy the
court that the bar under Section 47 does not apply to the separate
suit which has been instituted.


147. The grounds which are urged in the plaint would give an idea as to
whether it is only a material irregularity or fraud in publishing or
conducting the sale which is sought to be raised as a ground (in
which case the bar under Rule 92(3) would apply) or whether it is
alleged that the entire sale was rendered a nullity. For the latter
ground, depending on whether such a plaintiff was a party to the
original decree or their representative, or not, the bar under Section
47 would then apply. If such a plaintiff was indeed a party to the
original suit in which the decree was passed or their representative,
then the bar under Section 47 would operate against the filing of a
separate suit. However, if the plaintiff can establish that they do not
fall within the meaning of the phrase “ parties to the suit in which the
decree was passed” or “ their representatives ” and if they allege that the
auction sale was a nullity and was done without jurisdiction, then
they may be able to maintain a separate suit. One of these instances
where the sale could be rendered a nullity and be held to be without
jurisdiction is, if a “third party”, obtaining knowledge that his
property was sold in execution of a decree after the sale was
confirmed, asserts that the judgment-debtor never possessed any
title over the concerned property. This aspect shall be dealt with in
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more detail in the subsequent parts of our judgment, more
particularly in the part relating to Rule 92(4) of Order XXI CPC.

148. Ameena Bi v. Kuppuswami Naidu and Others (1993)
In reported in
2 SCC 405
, this was precisely the reason behind holding the suit
filed by the plaintiff to not be barred by Section 47. Therein, the
plaintiff was neither a party to the original suit nor a representative
and she alleged that the sale was a nullity and not binding on her.
Therein, the appellant-plaintiff and her uncle 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
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whether the separate suit was hit by Section 47. This was because in
the former situation, the plaintiff would not be a representative and
in the latter she would be. If the money decree created a liability as
against the estate, then the appropriate course of action would have
been to prefer an application under Section 47. However, it was held
that the liability was the personal liability of the uncle. In light of the
same, the plaintiff neither being a party to the money suit nor a
representative of the uncle, the separate suit was held to be
maintainable. The relevant observations are reproduced
hereinbelow:
“ 15. We have given our anxious considerations to the
submissions made on behalf of the appellant and find lot of
merit in the same. It is clear from the extract of the decree of
the suit register (Ext. A-7) that the decree was personally
against the second defendant, Mohammad Sheriff only and
also against defendant 1 to the extent of second defendant's
family properties in the hands of the Receiver. It is thus clear
that no decree had been passed against the estate of deceased
S.M. Sheriff. The plaintiff/appellant, Ameena Bi, got her
rights from her father. She never got any right from
Mohammad Sheriff in the partition decree. At the stage when
the execution was applied for, the court Receiver had ceased
to exist and the final decree had been passed in the partition
suit allotting the disputed properties to Ameena Bi. Ameena
Bi was never a party to the suit filed by Kuppuswami Naidu.
Even the decree which was passed against defendant 1 was to
the extent of the family properties of Mohammad Sheriff in
the hands of the Receiver and not the properties of the
deceased S.M. Sheriff in the hands of the Receiver.
16. We are thus of the view that the High Court erred in
construing as if the money decree had been passed against the
estate of deceased S.M. Sheriff. Admittedly Ameena Bi was
not a party to the suit. Since Ameena Bi was neither a party
to the suit nor any decree was passed against the estate of
deceased S.M. Sheriff, no question arose of Ameena Bi taking
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proceedings under Section 47 of the Code of Civil Procedure
in the suit filed by Kuppuswami Naidu (O.S. No. 208 of
1955). We thus set aside the finding of the High Court on the
construction of Ext. A-7, and uphold the construction placed
by the trial court and the lower appellate court. ”
(Emphasis supplied)


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 the Judgment Debtor.”
(Emphasis supplied)


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151. In view of the above finding of the High Court, it is difficult to reject
the contention of Mr. Vikas Singh, that the separate suit would be
hit by the bar envisaged under Section 47 as well.


152. To get more clarity as regards the position of law pertaining to who
can prefer a separate suit by alleging that the entire sale was without
jurisdiction and a nullity, after the confirmation of sale, we must
necessarily explain the scope and ambit of Rules 92(4) and 92(5)
respectively, with special focus on who is a “third party” as referred
to in Rule 92(4).



d. The scope and meaning of the term “third party” under Rule
92(4), the option of filing a separate suit being made available
to such third parties and its interplay with Rule 58 of Order
XXI CPC.

153.
It was submitted on behalf of the respondent nos. 1 and 2
respectively, that Rule 92(4) permits a “third party” to challenge the
title of a judgment-debtor by filing a suit against the auction-
purchaser, and joining the decree-holder along with the judgment-
debtor as necessary parties in such suit. It was stated that since the
respondent nos. 1 and 2 respectively fall within the term “third
parties” as given under Rule 92(4) of Order XXI, and the essentials
of this provision are fulfilled, their suit would be maintainable. We
find ourselves, yet again, unable to agree with this submission of
the learned Senior Counsel for the respondents for the reasons that
we shall assign hereinafter.
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154. To understand the import of the term “ third party” let us look at a
th
pertinent observation made by the Law Commission in its 54
Report (Vol 1, pg. 172) which reads that – “ Attachment may be
followed by an application for its removal by a third party , and the present
rules require a summary inquiry and order, which may be followed by a
suit to establish the right denied in the summary proceedings ”. This
referred to the scheme of Rule 58 as it existed prior to the 1976
Amendment. However, the reason behind our drawing attention to
this observation is the acknowledgment that a third party asserting
their title would be able to raise the grievance that his property has
been wrongly attached in the execution proceedings under Rule 58.
The third party referred herein, in the context of Rule 58, has some
significance as regards how the same term must be interpreted
under Rule 92(4) as well.

th
155. With particular reference to Rule 92, the 54 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:-
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“ 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 court to inquire into the title of
the judgment-debtor (at the time of the proclamation), in an
elaborate manner; but that does not answer the basic
question, namely, when a sale held by a Court and
culminating in a certificate issued by the court is held to be a
nullity for want of title, by reason of a defect discovered after
expiry of the period for making objections under R. 91 etc. is
it justice to dispose of the purchaser's grievance by saying
that the purchaser purchased the property at his peril? The
decree-holder should reimburse him for the loss suffered by
him, because it is the decree-holder at whose instance the sale
was held. The abstract principle that there is no warranty at
court sales fails to yield a just result in this case.

The auction-purchaser should have a right to sue the decree-
holder. Where a third party challenges the judgment-debtor's
title by filing a suit against the auction-purchaser the decree-
holder and judgment-debtor should be necessary parties and
in that suit the court shall direct the decree-holder to refund
the money to the auction-purchaser.

If such a decree is passed, the original execution proceedings
shall be revived at the stage where the sale was ordered, unless
the court otherwise directs. This provision is necessary to
avoid complications as to limitation.

21.49. Recommendation .—We, therefore, recommend that
the following sub-rules should be added to Or. 21 R. 92:
“(5) Where a third party challenges the judgment-
debtor's title by filing a suit against the auction-
purchaser, the decree-holder and the judgment-debtor
shall be necessary parties to the suit;
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(6) If the suit referred to in sub-r. (5) is decreed, the
court shall, direct the decree-holder to refund the money
to the auction-purchaser and where such an order is
passed, the execution proceedings in which the sale had
been held shall, unless the court otherwise directs, be
revived at the stage at which the sale was ordered.”
(Emphasis supplied)


156. No doubt, the aforesaid discussion of the Law Commission as
regards Rule 92 stemmed from a different lacunae in law that they
were trying to cure. However, in the aforesaid observations too, it is
very clear that only upon a suit for title instituted by a “third party”
which comes to be decreed in the third party’s favour, would 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
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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 as to who
must be made parties to such a separate suit.

158. The interplay of Rules 92(1) and 92(2) respectively, indicates that
such a suit under Rule 92(4) can arise only after an order confirming
the sale under Rule 92(1) has been passed. We say so because a third
party would otherwise be able to challenge the title of the judgment-
debtor under Rule 58 instead, by raising a claim or an objection as
regards the attachment of the property in the execution
proceedings. In other words, the option to assert his title over the
attached property is available to the third party under Rule 58 until
the sale comes to be confirmed. If knowledge that his property has
been attached and sold in an unrelated execution proceeding, has
been acquired by a third party after the sale has been confirmed
under Rule 92(1), then the only remedy available to him would be
to file a suit challenging the judgment-debtor’s title to the property,
alleging the sale to be a nullity. Here, although he is challenging the
title of the judgment-debtor to the property in question, yet his suit
would be instituted against the auction-purchaser because the sale
has become absolute in favour of the auction purchaser. Conversely,
if the sale is set-aside under Rule 92(2), there would be no reason for
a third party to institute a separate suit to assert his title, since the
remedy to file an objection under Rule 58 would be re-opened to
him.
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159. Therefore, what then becomes obvious is that, a third party referred
to in Rule 92(4) has no other option to challenge the judgment-
debtor’s title to the property sold, within the realm of the execution
proceedings, owing to the sale being confirmed. This is the reason
behind allowing such a person to institute a separate suit for the
same. The general principle is that all matters pertaining to the
execution, discharge and satisfaction of the decree be kept under the
umbrella of the executing court. A deviation from the above is
justified when the legislative scheme does not envisage an adequate
and proper remedy within the scheme of Order XXI and Section 47
CPC respectively. We have already emphasized that Rule 92(4) is
not a jurisdiction conferring provision. It is merely a reflection of the
right to institute a suit which exists with the third party who is
unable to address his grievances before the executing court.

160. With a view 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:

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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 adjudication of the claim or objection,
shall be determined by the Court dealing with the claim or
objection and not by a separate suit.

(3) Upon the determination of the questions referred to in
sub-rule (2), the Court shall, in accordance with such
determination,— (a) allow the claim or objection and release
the property from attachment either wholly or to such extent
as it thinks fit; or (b) disallow the claim or objection; or (c)
continue the attachment subject to any mortgage, charge or
other interest in favour of any person; or (d) pass such order
as in the circumstances of the case it deems fit.

(4) Where any claim or objection has been adjudicated upon
under this rule, order made thereon shall have the same force
and be subject to the same conditions as to appeal or otherwise
as if it were a decree.

(5) Where a claim or an objection is preferred and the Court,
under the proviso to sub-rule (I), refuses to entertain it, the
party against whom such order is made may institute a suit
to establish the right which he claims to the property in
dispute; but, subject to the result of such suit, if any, an order
so refusing to entertain the claim or objection shall be
conclusive. ”


161. What is relevant from the aforesaid, for the purposes of our
discussion is that, Rule 58 uses the words “ where any claim is preferred
to, or any objection is made to the attachment ” along with the words “ on
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the ground that such property is not liable to such attachment ”
respectively. This would indicate that a third party, i.e., a party who
was alien to the proceedings in the original suit in which the decree
was passed, could also prefer a claim or file an objection under Rule
58 against the attachment of the property by stating that the
judgment-debtor does not have title to such property. By virtue of
Rule 58(2) (in its amended form), all questions including those
relating to the right, title or interest in the property attached could
be looked into by the executing court. A separate suit in this regard,
at this stage of the execution proceeding, is barred and this is
indicated from the words “ and not by a separate suit ” occurring in
Rule 58(2).

162. The proviso to Rule 58(1) states that no claim or objection under
Rule 58 shall be entertained by the executing court under two
circumstances – (a) where the property attached has already been
sold 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.

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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 of
the execution proceedings are concerned.


164. What is evident from the aforesaid reading is that the executing
cannot entertain an application under Rule 58 once the stage of sale
has already passed. In other words, it would only be competent to
decide an application under Rule 58, at stages prior to the
occurrence of the sale. The moment the property comes to be sold,
the recourse available to any third party would be to institute a
separate suit, as so specifically elaborated under Rule 58(5).


165. Having said so, the words “ the property attached has already been sold ”
under clause (a) of the proviso to Rule 58 could give rise to some
interpretational ambiguity. In other words, it is unclear as to
whether the legislature intended this to refer to a stage when the
order of sale has been passed or whether it refers to a stage when
the order of confirmation of sale has been passed under Rule 92(1).
There is, otherwise, a very stark distinction between these two
orders - the former refers to the order which creates an opportunity
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to resort to Rules 89, 90 and 91 respectively to set-aside the sale, and
the latter refers to the order which arises after the applications made
under Rules 89, 90 and 91 respectively have been decided or when
the time for making those applications has lapsed. Therefore, there
is a significant gap between these two orders, which is, at the least
a minimum of 60 days as prescribed under Article 127 of the
Limitation Act, 1963.

166. Let us understand why a conscientious and careful interpretation of
the words “ the property attached has already been sold ” is of utmost
importance here. One possible way of interpreting it would be to
say that it refers to the order of sale which is passed once the
property has been auctioned and the auction-purchaser has been
chosen. To be more specific, it is that order after the passing of which
the recourse to Rules 89, 90 and 91 respectively would become
available. However, with such an interpretation, the consequence
would be that, if an application under Rule 58 is preferred even one
day after the order of sale has been made, then such an application
would come to be rejected in accordance with clause (a) of the
proviso to Rule 58(1) and Rule 58(5) would be set in motion,
whereby the said applicant could institute a separate suit. To put it
simply, this would mean that the option to institute 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
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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-debtor’s title, after the sale has been
confirmed, he must institute the same against the auction-purchaser
and must implead the decree-holder and judgment-debtor as
necessary parties. This would cohesively tie the rationale in Rule
58(5) with that in Rule 92(4) and infer that they allude to the same
underlying suit which is instituted after the sale has been confirmed
under Rule 92(1), wherein a third party asserts his title amongst
other rights.

168. Furthermore, Rule 92(1) also requires the executing court to halt the
confirmation of sale if an application under Rule 58 is pending. This
should ideally be inferred as also referring to any application under
Rule 58 which has been instituted after the order of sale has been
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passed and is pending adjudication before the executing court,
unless any contrary intention is apparent. We do not see any reason
why we must deviate from this view.





169. The following visualizes the consequences of the two
interpretations:


(i) Interpretation (A)

Recourse to a “third
party” to assert his
title through an
application under
Rule 58







(ii) Interpretation (B)

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
assert his title through an
application under Rule 58





170. What the aforesaid further makes clear is that, in the former
interpretation, the effect would be that the recourse to file a separate
suit would be made available to a third party at a relatively earlier
stage of the execution proceedings and in the latter interpretation, it
would be available at a later stage. We are of the opinion that the
latter interpretation of the words “ the property attached has already
been sold ” i.e., to understand it as referring to the order confirming
the sale under Rule 92(1) would ensure better coherence and
synergy in the overall scheme of Order XXI CPC.

171. Such a view insofar as Rule 58(1) and its proviso are concerned, has
also been taken by the decision of this Court in Kancherla
Lakshminarayana v. Mattaparthi Syamala and Others reported in
(2008) 14 SCC 258 wherein it was held that the word “sold” used in
Rule 58(1) proviso (a) would mean complete sale including the
confirmation of auction as under Rule 92(1). Therefore, objections
made under Rule 58 before the date on which the sale was
confirmed, would be tenable. The relevant observations are
reproduced as thus:
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4. […] The High Court has thus considered the question of
the stage at which the objection could be raised and has dealt
with that such objection would not be tenable on the backdrop
of the language of clause (a) of the proviso to Order 21 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(4) respectively is one and
the same, the interpretation of the term “third party” under Rule
92(4) must also be in consonance with Rule 58.

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174. Therefore, the term “third party” under Rule 92(4) would mean a
party other than the judgment-debtor, decree-holder or the auction-
purchaser and would refer to a party who has not had his right, title
or interest vis-à-vis the property in question adjudicated under Rule
58, Rule 97 or Rule 99 of Order XXI CPC respectively or has not had
the opportunity to do so.


175. The reason why we have included Rules 97 and 99 respectively
within this ambit will become more apparent after the discussion
we have undertaken in the subsequent paragraphs of this judgment
on Rules 99 to 104 respectively. For a specific kind of third parties
i.e., third parties who are in possession and who come to be
dispossessed, Order XXI CPC, through Rule 99 has already
envisaged a remedy, which will be shortly elaborated upon.
Therefore, there might be no need for such third parties in
possession who are able to avail a remedy under Rules 97 or 99 to
also be allowed to institute a separate suit as indicated under Rule
92(4).


176. However, 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.

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177. A few High Courts have taken the view that the words “third party”
under Rule 92(4) must be read to mean any third person who is
asserting an independent title to the property. However, such a
reading would keep at bay those persons who have bought the
property from the judgment-debtor but before the institution of the
suit i.e., bona fide purchasers for value who are not hit by the
doctrine of lis pendens . The unintentional bar to the filing of a suit by
such purchasers who wish to establish their right, title and interest
to the property must not be a by-product of the interpretation of the
term “third party” in Rule 92(4). The legislature has consciously
used the term “party” instead of “person” to reinforce that those
individuals who have not been party to the original suit
proceedings or party to the execution 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
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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 under Rules 89, 90
or 91 respectively, the defence that they didn’t obtain knowledge of
the grounds falling under those rules at a time before the sale came
to be confirmed would not be reason enough to allow the filing of a
separate suit. Such a suit would be hit by the bar to a suit under Rule
92(3). However, there is some leeway, albeit very small, for a party
to assail the sale which was made in execution of a decree even after
the sale comes to be confirmed. If it is their case that the entire sale
was without jurisdiction and a nullity and the person taking such
an objection is either a party to the original decree or their
representatives, then their remedy would ideally exist under
Section 47 CPC. They would not be able to prefer a separate suit
owing to the bar to a separate suit under Section 47 CPC. On the
other hand, if they are neither parties to the original decree nor their
representatives, then the bar to a suit under Section 47 would also
not operate against them and they would be able to file a separate
suit alleging that the entire sale was a nullity. One of those
predominant grounds wherein such a person not falling with the
scope of Section 47 CPC can claim that the entire sale was without
jurisdiction or a nullity is that the judgment-debtor did not have any
title over the property which came to be sold. Such a specific
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situation has been addressed under Rule 92(4) where guidance is
given as to whom such a suit must be filed against and who would
be the necessary parties under such proceedings. It is of utmost
importance to ensure that such a third party who has instituted the
separate suit could not get his rights adjudicated under Rule 58 for
the want of knowledge of the execution proceedings at the relevant
time. Otherwise, third parties could derail the outcome of the
execution proceedings by simply waiting to institute collateral
proceedings when they very well had an opportunity to file an
application under Rule 58.
180. From the above exposition of law, it is limpid that the respondent
nos. 1 and 2 respectively were not “ third parties ” under Rule 92(4).
This is because they were representatives of the judgment-debtor as
envisaged under Section 47 CPC having purchased the suit
property during the pendency of the proceedings. Although the
respondent nos. 1 and 2 respectively had instituted a suit against the
auction purchaser-appellants, 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.

Whether the respondent nos. 1 and 2 respectively could have
IV.
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
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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 under Rule 99, a dispossessed person could allege that
the entire sale conducted by the executing court was a nullity for the
reason that the judgment-debtor did not have any title over the said
property.

183. Rule 99 of Order XXI of the CPC reads thus:
“ 99. Dispossession by decree-holder or purchaser. —(1)
Where any person other than the judgment-debtor is
dispossessed of immovable property by the holder of a decree
for the possession of such property or, where such property
has been sold in execution of a decree, by the purchaser
thereof, he may make an application to the Court complaining
of such dispossession.

(2) Where any such application is made, the Court shall
proceed to adjudicate upon the application in accordance with
the provisions herein contained.”


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184. We also find it apposite to reproduce Rules 100, 101 and 102 of
Order XXI CPC respectively, since they are closely connected with
Rule 99 referred to hereinabove. These rules read thus:

“ 100. Order to be passed upon application complaining
of dispossession. —Upon the determination of the questions
referred to in rule 101, the Court shall, in accordance with
such determination,—
(a) make an order allowing the application and directing that
the applicant be put into the possession of the property or
dismissing the application; or
(b) pass such other order as, in the circumstances of the case,
it may deem fit.

101. Question to be determined .—All questions
(including questions relating to right, title or interest in the
property) arising between the parties to a proceeding on an
application under rule 97 or rule 99 or their representatives,
and relevant to the adjudication of the application, shall be
determined by the Court dealing with the application and not
by a separate suit and for this purpose, the Court shall,
notwithstanding anything to the contrary contained in any
other law for the time being in force, be deemed to have
jurisdiction to decide such questions.

102. Rules not applicable to transferee lite pendente. —
Nothing in rules 98 and 100 shall apply to resistance or
obstruction in execution of a decree for the possession of
immovable property by a person to whom the judgement-
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. Explanation.—In this rule, “transfer”
includes a transfer by operation of law.”



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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
two things: first , that he had possession prior to the execution of the
decree; and secondly , that he was dispossessed by the decree holder,
or the auction purchaser, as the case may be, during the execution
of the decree. When such an application complaining of his
dispossession is made, all questions including the questions relating
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to the right, title and interest of the property can be decided by an
executing court.


187. Insofar as Rule 99 of Order XXI CPC is concerned, the decision of
this Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal
and Another reported in (1997) 3 SCC 694 observed that if a stranger
to the original decree is dispossessed of the suit property relating to
which he claims any right, title or interest, then his remedy would
lie in filing an application under Rule 99 of Order XXI CPC. In
deciding such an application, the executing court would then
determine whether his dispossession was illegal and whether
possession must be restored to such an applicant by way of an order
under Rule 100. The relevant observations are reproduced
hereinbelow:
“ 8. A conjoint reading of Order 21, Rules 97, 98, 99 and 101
projects the following picture:

[…]

(2) If for any reason a stranger to the decree is already
dispossessed of the suit property relating to which he claims
any right, title or interest before his getting any opportunity
to resist or offer obstruction on the spot on account of his
absence from the place or for any other valid reason then his
remedy would lie in filing an application under Order 21,
Rule 99 CPC claiming that his dispossession was illegal and
that possession deserves to be restored to him. If such an
application is allowed after adjudication then as enjoined by
Order 21, Rule 98 [sic Rule 100], sub-rule (1) CPC the
executing court can direct the stranger applicant under
Order 21, Rule 99 to be put in possession of the property or
if his application is found to be substance-less, it has to be
dismissed. Such an order passed by the executing court
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disposing of the application one way or the other under Order
21, Rule 98 [sic Rule 100], sub-rule (1) would be deemed to
be a decree as laid down by Order 21, Rule 103 and would be
appealable before appropriate appellate forum. But no
separate suit would lie against such orders as clearly enjoined
by Order 21, Rule 101. ”
(Emphasis supplied)


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, other than
someone who is the decree-holder. Meaning thereby that, they must
be unconnected to the original lis which decree is sought to be
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executed by the executing court. It is only logical that a decree-
holder can never be an applicant under Rule 99 since he is the
dispossessor. In that sense, the terms “ stranger to the decree ” and “ any
person other than the judgment debtor ” are synonymous and they may
be used interchangeably, insofar as Rule 99 is concerned.

191. The words “any person other than the judgment debtor ” in Rule 99 is of
a wider import. It must be read to mean any person other than the
judgment-debtor or his legal representatives. To put it simply, it
may include a person asserting his own independent title and it may
also include persons who are subsequent transferees of the
judgment-debtor but were not made parties to the original suit.
Although the latter group of persons would be deriving their title
or interest from the judgment-debtor, the phrasing of Rule 99 is such
that, in the event of their dispossession, they would be able to prefer
an application under the said provision. Whether they would be
able to obtain any order under Rule 100 is another question
altogether. However, if the intention was to prevent even such
persons from falling within the purview of Rule 99, then the
provision would have read as “ any person other than the judgment
debtor or those claiming through or under the judgment-debtor ”.


192. Furthermore, reading the phrase “ any person other than the judgment-
debtor ” widely and the words “ judgment-debtor ” narrowly also
makes sense for the simple reason that it is only the judgment-
debtor who has been dispossessed by virtue of execution of the
original decree, by the decree-holder or the auction purchaser, who
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must not reagitate what he has already agitated or had the
opportunity to agitate in the original suit. If that were allowed, then
it would virtually create an endless loop in favour of the
unsuccessful judgment-debtor when the decree against him has
already attained finality.


193. We subscribe to the aforesaid wider reading of the phrase for yet
another reason. It is only afterwards, that in Rule 102 of Order XXI
CPC, it is stated that a transferee pendente lite of the judgment-debtor
or to put it simply, a person to whom the judgment-debtor has
transferred the suit property after the original suit was 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
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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 reported in (2003) 12 SCC 219 discussed the
maintainability of an application under Rule 99 of Order XXI and
contextualized the meaning of the terms “possession” and
“dispossession”. It was stated that the term must not always be
relegated to a restricted understanding i.e., as the ouster from actual
and physical possession. Rather, its legal meaning must necessarily
be understood from the context that it is subject to. In the context of
an open vacant land, it was stated that such a land is generally
possessed by someone who can exercise control over it to the
exclusion of others. Therefore, dispossession must also be
understood as occurring when such a general control to put the land
to their own use, is lost. The relevant observations are thus:

“ 22. The word “dispossessed” as used in Order 21 Rule 99 of
the Code has been narrowly construed to be an ouster from
actual and physical possession of the property by several High
Courts. See Pera Naidu v. Soundaravalli Ammal [AIR 1954
Mad 516 : (1954) 1 MLJ 179] AIR at p. 519; Rajendra N.
Das v. Minatunnisa Bibi [ (1966) 32 Cut LT 972 : ILR 1966
Cut 611] and Emerciano Leonardo Dias (Dr.) v. Ganexama
B. Naique Vaingancar [AIR 1978 Goa 48] .

23.Salmond on Jurisprudence explains that the word
“possession” is a word of “open texture”. Its legal meaning
has to be ascertained from the context. The property involved
in the present case is open vacant land. Such property is
possessed by a person who has control over the same. This
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“control” over the property means “power to exclude all
others”. The test then for determining whether a man is in
possession of anything is whether he is in “general control”
of it — maybe, that he is not in actual and physical possession
or using the same.

24. The objectors have laid evidence before the executing
court to show that after obtaining by recitals in the sale deeds
delivery of possession of the property, the names of purchasers
were also mutated in the municipal records. Merely because
at the time of execution of the decree through Court Nazir,
the objectors were not physically present on the property, it
cannot be said that the delivery of possession to the decree-
holder by the court does not amount to the objectors' legal
ouster or “dispossession”. The word “possession”, therefore,
has to be given contextual meaning on facts of a particular
case and 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.
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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 respondent Trust in
execution of decree dated 2-9-2003, the appellant would have
been well within the ambit of Rule 99 to make an application
seeking appropriate relief to be put back in possession. On the
contrary, the appellant in the instant case was never
dispossessed from the property in question and till date, as
contended and unrefuted, the possession of same rests with
the appellant. Considering the aforesaid, the appellant cannot
be said to be entitled to make an application under Rule 99
raising objections in execution proceedings since he has never
been dispossessed as required under Rule 99. ”
(Emphasis supplied)

197. On a combined reading of Ashan Devi (supra) and Sriram Housing
(supra), what possession and dispossession would mean in the facts
and circumstances of each case must be adequately and
conscientiously contextualized. In the present matter, there seems
to be some confusion regarding whether the respondent nos. 1 and
2 respectively were dispossessed or not. In the SLP before us, the
appellants have contended that they have been in possession of the
suit land for the past 20 years or so. Meaning thereby, that the
respondent nos. 1 and 2 respectively were successfully dispossessed
during the execution of the original decree. In this context, certain
averments made by the respondent nos. 1 and 2 respectively in their
plaint need to be reproduced:
“7. That the plaintiffs were not aware of the above-said
proceedings and they continued to be in possession of the land
mentioned in para No. 1 above of the plaint.

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8. That a week ago, the plaintiffs went to the land for
ploughing it, but they were prevented by defendant No. 1 to
3, who asserted that they have purchased the whole land
including the suit land in court auction and that they have
alleged to have taken possession on 14-6-1989 of the same, on
the basis of warrant of possession having been issued by the
Civil Courts.

-xxx-

11. That the defendants No. 1 to 3 alleged to have taken
possession of the land including of the land of the plaintiffs
on 24-6-1989, vide Rapat Roznamcha No. 400. This entry is
a paper entry so far as the plaintiffs are concerned. No notice,
whatsoever, was given to the plaintiffs while making the
alleged delivery of possession and writing of the Rapat
Roznamcha entry by the revenue officials. The plaintiffs still
continue to 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
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to the applicant by using Phawra. The aforesaid fact of
completion of auction and delivery of possession was
announced through Narangi Chowkidar the receipt of which
is enclosed. Now the entry has been made in the Daily Diary
with Patwari vide Rapat No. 400. At the same time the
Patwari has been directed to make mutation entry No 929.
This mutation entry be produced before C.R.O. Accordingly,
the present report is being submitted.”
(Emphasis supplied)


199. The Trial Court vide its judgment and decree dated 22.02.2001 also
observed that the respondent nos. 1 and 2 respectively were no
longer in possession of the suit land and observed as follows:
“However, I am agreed with the contention of counsel for
defendants that plaintiffs could not prove the fact by leading
any cogent and reliable material that he is still in possession
of the suit property. […] It is therefore, held that though
plaintiffs are owners of the suit property but not in possession
of the same.”
(Emphasis supplied)

200. On a consideration of all the above, it could be said that, having
fulfilled all the necessary conditions underlying Rule 99, the
respondent nos. 1 and 2 respectively could have preferred an
application under Rule 99 instead of instituting a separate suit.
However, we have already explained in sufficient detail in the
preceding parts of this judgment as to why the respondent nos. 1
and 2 respectively are transferees pendente lite of the judgment-
debtor. The consequence of this would be that even if they had
chosen to prefer an application under Rule 99, Rule 102 would have
stood in their way. Therefore, in light of the bar against transferees
pendente lite of the judgment-debtor in obtaining any relief under
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Rule 99 read with rule 100, we must further examine whether this
by itself would make a separate suit instituted by such transferees
pendente lite maintainable.


201. It is at this juncture that we must look into the import of the words
“ and not by a separate suit ” occurring in Rule 101 of Order XXI CPC
with a view to understand what this means for any general
applicant under Rule 99 and also for an applicant who may be a
transferee pendente lite of the judgment debtor, especially in the
context of the availability of the option of filing a separate suit. The
answer to this question would also help in understanding whether
the separate suit filed by the respondent nos. 1 and 2 respectively,
could said to be maintainable.

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
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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, such a separate suit would not be maintainable since
the executing court exercising its jurisdiction afforded under Rule
99 would be the only appropriate forum for adjudicating such a
dispute. In other words, that the dispossessed person cannot be said
to have options that he could exercise simultaneously.


204. Before we lay down which interpretation is more plausible, we must
look into the provisions which existed prior to the Amendment Act
of 1976. The same are reproduced as under:

“ 97. Resistance or obstruction to possession of
immovable property - (1) Where the holder of a decree for
the possession of immovable property or the purchaser of any
such property sold in execution of a decree is resisted or
obstructed by any person in obtaining possession of the
property, he may make an application to the court
complaining of such resistance or obstruction.

(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.

98. Resistance or obstruction by judgment debtor -

Where the court is satisfied that the resistance or obstruction
was occasioned without any just cause by the judgment-
debtor or by some other person at his instigation, it shall
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direct that the applicant be put into possession of the
property, and where the applicant is still resisted or
obstructed in obtaining possession, the court may also, at the
instance of the applicant, order the judgment-debtor, or any
person acting at his instigation, to be detained in the civil
prison for a term which may extend to thirty days.

99. Resistance or obstruction by bona fide claimant -
Where the court is satisfied that the resistance or obstruction
was occasioned by any person (other than the judgment-
debtor) claiming in good faith to be in possession of the
property on his own account or on account of some person
other than the judgment-debtor, the court shall make an order
dismissing the application.

100. Dispossession by decree-holder or purchaser - (1)
Where any person other than the judgment-debtor is
dispossessed of immovable property by the holder of a decree
for the possession of such property or, where such property
has been sold in execution of a decree, by the purchaser
thereof, he may make an application to the court complaining
of such dispossession.

(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.

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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 deem it necessary to reproduce some pertinent
observations made by the Law Commission of India in several of
th
its reports. In its 14 Report (Vol I, pg. 454), it was suggested that
the executing court under Rules 97 and 99 respectively, must
themselves indulge in a full inquiry as regards the ultimate right
and title of the parties and must not keep it restricted to a summary
inquiry leaving it open for the aggrieved party to again file a suit
under the old Rule 103. This suggestion was whole-heartedly
accepted by way of the Amendment Act of 1976. The relevant
excerpts from the report are thus:
“ 49. Suits under Rules 63 and 103 to be barred. – In
regard to suits under Rule 63 or 103 we have no hesitation in
accepting the suggestion which has been made by a number
of persons including some eminent members of the judiciary
that the executing court itself should make a full inquiry into
the ultimate right and title of the parties and not merely a
summary inquiry into possession leaving it open to the
aggrieved party to file a suit. Such a recommendation has
been made by us in our report on the Limitation Act. The
order passed in such inquiries should be deemed to be a decree
within the meaning of section 2, sub-section (2) as in the case
of orders under section 47 and be subject to such appeals as
are allowed by the law relating to appeals from decrees. We
recommend that the law be amended in this manner and the
provisions saving or enabling suit to be filed in Rules 63 and
103 be omitted.”
(Emphasis supplied)

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th

206. Thereafter, in its 27 Report (Vol 1, pg 18-20), the Law Commission
of India gave further necessary context as to why the aforesaid old
provisions came to be amended and it agreed with the
th
recommendations of the 14 Report in view of giving expedited
relief to the litigants. The excerpts are as under:
“ 41. Delay in execution – Order 21, Rule 58 and 97.
Delay in execution proceedings is mainly due to certain
dilatory tactics adopted by judgment-debtors. When in
execution proceedings any property is attached, there is
generally a claim filed under Order XXI, rule 58. If this claim
is rejected, a suit is filled under rule 63 of that Order. If the
attachment of the property is finally upheld, there are
obstruction proceedings under rule 97, followed by a suit
under rule 103. The Fourteenth Report, contains a
recommendation that 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
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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 new regime, the option of filing a separate suit has
been done away with for both rules 97 and 99 respectively.
Therefore, it would only be reasonable for us to infer that the same
or at least a similar mischief was sought to be curtailed even under
Rule 99 and thereby, it was included within the ambit of the new
Rule 101 which bars the filing of a separate suit.

208. In Ghasi Ram v. Chait Ram Saini reported in (1998) 6 SCC 200 , this
Court made some important observations as regards the regime that
existed pre-amendment and that which exists post-amendment. It
was stated that under the pre-amendment scheme, an order which
was made under the old Rules 98, 99 and 101 respectively could be
the subject of a separate suit by virtue of the old Rule 103. In other
words, since an order under the rules as aforesaid did not always
involve a full and final adjudication on the questions of right, title
or interest of the competing parties, the old provisions collectively
envisaged that the any party not being a judgment-debtor would
have the option of file a separate suit to decide those questions in
case an order adverse to him is rendered by the executing court
under the old Rules 98, 99 and 101 respectively. Therefore, the order
passed by the executive court would be final subject to a separate
suit being filed by the aggrieved person under the old Rule 103. The
relevant observations are as thus:
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“ 7. A perusal of the aforesaid provisions would show that the
scheme commencing under Rule 97 and onwards before the
enactment of the Amendment Act, 1976 was that where a
decree-holder or the purchaser at the court sale of property
was obstructed in obtaining possession of such property by
any person, he was entitled to apply to the court complaining
of such resistance or obstruction. […]If an order was passed
under Rule 98 allowing the application under Rule 97 CPC,
such an order was conclusive between the parties except that
a party other than the judgment-debtor against whom the
order was passed was entitled to file a fresh suit under Rule
103 to establish his right to the possession. […] However, the
position has changed after amendment of the Code of Civil
Procedure by the Amendment Act of 1976. Now, under the
amended provisions, all questions, including right, title,
interests in the property arising between the parties to the
proceedings under Rule 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
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specific reason why the remedy of filing a separate suit was kept
open. When the legislature has consciously done away with the old
Rule 103 and instead, empowered the executing court itself to look
into these questions, then logic would demand that there is now no
need for providing the remedy of filing a suit in the same regard.

210. In Noorduddin v. K.L. Anand reported in (1995) 1 SCC 242 , this
Court elaborated on the nature of determination envisaged under
the Rules 98, 100 and 101 of Order XXI respectively, as follows:
i. First, a comparison was drawn between the position which
existed prior to the Amendment Act of 1976 to state that the
old Rule 103 allowed the filing of a separate suit, however,
that this right has been explicitly taken away post the
amendment. This combined with the change brought through
the new Rule 101 would mean that the legislature has
relegated the parties to an adjudication of right, title or interest
in the immovable property in the execution proceedings itself
and finality is also accorded to it.
ii.
Secondly, the change made vide the amendment was said to
have been enacted with the object of putting an end to the
protraction of execution and in order to shorten the litigation
between all persons claiming a right, title or interest in the
immovable property which is the subject of execution.

iii. Thirdly , it was stated that although the right, title or interest
are substantive rights, yet the right to adjudication in that
behalf is a procedural right to which no person can claim to
have a vested right. It was emphasized that the judicial
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process should not be interpreted such that it becomes an
instrument of abuse or a means to subvert justice. Courts
must, therefore, evolve processes that aid expeditious
adjudication.

The relevant observations are reproduced as under:
“ 8. Thus, the scheme of the Code clearly adumbrates that
when an application has been made under Order 21, Rule 97,
the court is enjoined to adjudicate upon the right, title and
interest claimed in the property arising between the parties
to a proceeding or between the decree-holder and the person
claiming independent right, title or interest in the immovable
property and an order in that behalf be made. The
determination shall be conclusive between the parties as if it
was a decree subject to right of appeal and not a matter to be
agitated by a separate suit. In other words, no other
proceedings were allowed 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 would rip apart the edifice of justice and
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create a feeling of disillusionment in the minds of the people
of the very law and courts. The rules of procedure have been
devised as a channel or a means to render substantive or at
best substantial justice which is the highest interest of man
and almameter (sic) for the mankind. It is a foundation for
orderly human relations. Equally the judicial process should
never become an instrument of oppression or abuse or a
means in the process of the court to subvert justice. The court
has, therefore, to wisely evolve its process to aid expeditious
adjudication and would preserve the possession of the
property in the interregnum based on factual situation.
Adjudication under Order 21, Rules 98, 100 and 101 and its
successive rules is sine qua non to a finality of the
adjudication of the right, title or interest in the immovable
property under execution.”
(Emphasis supplied)

211. In the aforesaid context, in Noorduddin (supra) it was observed that
“ Adjudication under Order 21, Rules 98, 100 and 101 and its successive
rules is sine qua non to a finality of the adjudication of the right, title or
interest in the immovable property under execution. ” This observation,
read in light of the change brought in post-amendment can only
mean that, with a view to accord finality to the dispute pertaining
to the subject property, even a third party asserting a right, title or
interest ought to agitate his grievances only under Rule 99 in the
event his dispossession is caused by the execution of the decree.

212. In Babulal v. Rak Kumar reported in (1996) 3 SCC 154 , this Court
made an observation that the procedure prescribed under Rules 98
to 103 is a complete code in itself and observed thus:
“ 6. […] Thus, the procedure prescribed is a complete code in
itself. Therefore, the executing court is required to determine
the question, when the appellants had objected to the
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execution of the decree as against the appellants who were not
parties to the decree for specific performance.”
(Emphasis supplied)


213. This Court in Sameer Singh and Another v. Abdul Rab and Others
reported in (2015) 1 SCC 379, while deciding what would constitute
an ‘adjudication’ under Rules 97, 99 and 101 of Order XXI CPC
respectively, shed some light on how the scheme underlying the
said rules must be appreciated. It was reiterated 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 been dispossessed
from the immovable property. The self-contained code, as has
been emphasised by this Court, enjoins the executing court to
adjudicate the lis and the purpose is to avoid multiplicity of
proceedings. It is also so because prior to 1976 amendment
the grievance was required to be agitated by filing a suit but
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after the amendment the entire enquiry has to be conducted
by the executing court. Order 21 Rule 101 provides for the
determination of necessary issues. Rule 103 clearly stipulates
that when an application is adjudicated upon under Rule 98
or Rule 100 the said order shall have the same force as if it
were a decree. Thus, it is a deemed decree. […]
(Emphasis supplied)


214. Giving an order made under Rules 98 and 100 of Order XXI CPC
respectively, the status of a ‘deemed decree’ for the purpose of an
appeal has effectively given the parties more reason to agitate
everything that they would in a separate suit before the executing
court itself. In light of this, it would be absurd to still say that the
right to file a separate suit in so far as matters pertaining to Rules 97
and 99 respectively would still remain alive. There would be no
purpose in holding so. On the contrary, it would only defeat the
reasons due to which the legislature thought fit to expand the
jurisdiction of the executing court under Rule 101 by way of the
amendment.


215. It was very aptly pointed out by this Court in Sreenath v Rajesh
reported in (1998) 4 SCC 543 that the courts, within their own
limitations, have been interpreting the procedural laws so as to
conclude all possible disputes pertaining to the decretal property
within the execution proceeding itself, i.e., including what may be
raised later by way of another bout of litigations through a fresh
suit. Similarly legislatures equally are also endeavouring by
amendments to achieve the same objective. Therefore, in
interpreting any procedural law, where more than one
interpretation is possible, the one which curtails the procedure
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without eluding justice is to be adopted. The procedural law is
always subservient to and is in the aid of justice. Any interpretation
which eludes or frustrates the recipient of justice is not to be
followed. So, under Order XXI Rule 101 all disputes between the
decree-holder and any such person is to be adjudicated by the
executing court. A party is not thrown out 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 favour. Indeed, his difficulties in
real and practical sense, arise after getting the decree.
Presumably, to tackle such a situation and to allay the
apprehension in the minds of litigant public that it takes
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years and years for the decree-holder to enjoy fruits of the
decree, the legislature made drastic amendments in
provisions in the aforementioned Rules, particularly, the
provision in Rule 101 in which it is categorically declared
that all questions including questions relating to right, title
or interest in the property arising between the parties to a
proceeding on an application under Rule 97 or Rule 99 or
their representatives, and relevant to the adjudication of the
application shall be determined by the court dealing with the
application and not by a separate suit and for this purpose,
the court shall, notwithstanding anything to the contrary
contained in any other law for the time being in force, be
deemed to have jurisdiction to decide such questions. On a
fair reading of the Rule it is manifest that the legislature has
enacted the provision with a view to remove, as far as
possible, technical objections to an application filed by the
aggrieved party whether he is the decree-holder or any other
person in possession of the immovable property under
execution and has vested the power in the executing court to
deal with all questions arising in the matter irrespective of
whether the court otherwise has jurisdiction to entertain a
dispute of the nature. This clear statutory mandate and the
object and purpose of the provisions should not be lost sight
of by the courts seized of an execution proceeding. The court
cannot shirk its responsibility by skirting the relevant issues
arising in the case.”
(Emphasis supplied)


217. In Sriram Housing (supra), it was finally buttressed that rule 101
effectively does away with the requirement of filing a fresh suit for
the adjudication of a dispute which could be dealt with under rules
97 or 99, as the case may be and it was observed as thus:
“26. Now, as stated above, applications under Rule 97 and
Rule 99 are subject to Rule 101 which provides for
determination of questions relating to disputes as to right,
title or interest in the property arising between the parties to
the proceedings or their representatives on an application
made under Rule 97 or Rule 99. Effectively, the said Rule
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does away with the 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 parties […]
(Emphasis supplied)

This observation can be looked at from a different perspective
for the purpose of the question that we are presently faced with i.e.,
- when the executing court under Rule 101 is anyway required to
looked at such questions, by way of a strict obligation, then there is
no reason for a person who can very well fall under the scope of
Rules 97 or 99, to prefer a separate suit for the adjudication of the
same claims which the executing court is competent to look into.
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219. In Shamsher Singh (supra) , the application filed under Rule 99 was
ultimately dismissed after conducting the exercise of determining
whether the applicant had a right, title or interest in the decretal
property by way of adverse possession. This Court rejected the
contention of the applicant that mere prior bona fide possession,
would require the executing court to restore the possession of the
applicant. This Court had acknowledged the sea-change brought to
the Rules 99 to 101 respectively and stated that post the amendment,
the executing court could only direct that possession be given to the
applicant under Rule 99 if it is satisfied that he has established his
right, title or interest and not otherwise. In that context, it was
observed that “ What was earlier to be adjudicated in a suit under
unamended Rule 103 is now to be adjudicated in Rule 101 itself ”.

220. In light of all the aforesaid, we are of the view that there exists no
option of filing a separate suit for a person who may very well prefer
an application under Rule 99 of Order XXI CPC. To put it simply,
one cannot file a separate suit as an alternative to an application
under Rule 99. If such a suit is preferred, it could be said to be non-
maintainable for the reason that the appropriate course of action
would have been to prefer an application under Rule 99 instead.
Hence, amongst the two alternate interpretations to which we had
alluded at the beginning of our discussion on this aspect, we are
inclined to adopt the latter.

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221. As a consequence, a question that then arises is whether transferees
pendente lite of the judgment debtor would have the remedy of filing
a separate suit considering the bar placed upon them by virtue of
Rule 102? We are also inclined to answer this in the negative.


222. Before proceeding further, at the outset, we would like to clarify the
scope of Rule 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 between a plaintiff and a defendant
as to the right to a particular estate, the decision of the court
in that case shall be binding not only on the litigating parties,
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but also on those who derive title under them by alienations
(transfer) made while the suit was pending, whether such
alienees, i.e. transferees, had or had not notice of the pending
proceedings. […]

Therefore, Rule 102 of Order XXI intends to protect the
interests of the decree-holder against the attempts of
unscrupulous judgment-debtors and their subsequent
transferees who indulge in activities and leave no stone
unturned to deprive the decree-holders from reaping the
benefits of the decree granted in their favour. The Rule being
equitable in nature, therefore, estops further creation of rights
as it explicitly states that nothing in Rules 98 and 100 shall
apply to the resistance or obstruction being made by the
transferee pendente lite of judgment-debtor.

-xxx-

11. While it is important to protect the interests of decree-
holders, who hold an enforceable decree in their favour, it
cannot be gainsaid that such interests cannot be blanketly
protected. Rule 102 of Order XXI expressly lays down the
ingredients as to when it can be applied. For a case to fall
under Rule 102, it is condition precedent that there exists a
decree for the possession of immovable property. Secondly,
there must be a resistance or an obstruction in the execution
of the said decree. Thirdly, such obstruction or resistance
must be made by a person to whom the judgment-debtor has
transferred the property. Fourthly, such transfer must have
occurred after the institution of the original suit, i.e. the one
in which the decree was passed. If the aforesaid ingredients
are made out, Rule 102 prohibits the protection of Rules 98
and 101 to such errant transferee of judgment-debtor.

-xxx-

13. However, Rule 102 of Order XXI applies only to a person
to whom the judgment-debtor has transferred the immovable
property which was subject matter of that suit pendente lite.
If the person who is resisting or obstructing the execution of
the decree for possession of such property, is not the transferee
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of judgment-debtor, i.e. he does not trace his title from
judgment-debtor, bar of Rule 102 does not apply to him. That
is to say that if the person who is resisting or obstructing the
decree for possession 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 relief to the applicant rather
than a bar on the applicant themselves.
225. In their natural course, the executing court would necessarily have
to adjudicate the application before them, whether it was made by
a transferee pendente lite of the judgment-debtor or not. However,
when an objection is raised that the applicant is barred from
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obtaining any relief under Order 102, then such an adjudication
would be confined to whether he is a transferee pendente lite of the
judgment-debtor or not. If yes, then the executing court would be
barred from making any further orders under rules 98 and 100
respectively.

226. The aforesaid is supported by the decision in Silverline Forum
(supra), wherein it was observed in the context of Rule 97 that, if the
transferee pendente lite
resistance is being offered by a of the
judgment-debtor as defined in Rule 102, then the scope of the
adjudication under Rule 101 would be shrunk to the limited
question of whether the applicant under Rule 97 is such a pendente
lite transferee . If answered in the affirmative, then such an applicant
would be held to not be entitled to offer such a resistance based on
the salutary principle underlying Section 52 of the Transfer of
Property Act. The relevant observations are thus:
“ 10. It is true that Rule 99 of Order 21 is not available to any
person until he is dispossessed of immovable property by the
decree-holder. Rule 101 stipulates that all questions “arising
between the parties to a proceeding on an application under
Rule 97 or Rule 99” shall be determined by the executing
court, if such questions are “relevant to the adjudication of
the application”. A third party to the decree who offers
resistance would thus fall within the ambit of Rule 101 if an
adjudication is warranted as a consequence of the resistance
or obstruction made by him to the execution of the decree. No
doubt if the resistance was made by a transferee pendente lite
of the judgment-debtor, the scope of the adjudication would
be shrunk to the limited question whether he is such a
transferee and on a finding in the affirmative regarding that
point the execution court has to hold that he has no right to
resist in view of the clear language contained in Rule 102.
Exclusion of such a transferee from raising further
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contentions is based on the salutary principle adumbrated in
Section 52 of the Transfer of Property Act.”
(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 not entitled to file an application under
Order XXI Rule 99 CPC and raise the question of limitation
of the Execution Petition, so as to deprive the right of the
appellants to enjoy the fruits of the decree.

14. On a reading of Order XXI Rule 99 CPC, it is lucid that
where any person other than the judgment debtor is
dispossessed of immovable property by the holder of a decree
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for the possession of such property, or where such property
has been sold in execution of a decree, by the purchaser
thereof, he may make an application to the Court complaining
of such dispossession. It also means that a third party to the
decree has a right to approach the Court even after
dispossession of the immovable property, which he was
occupying. In the case on hand, the predecessor of the
respondents was not a party to the suit and he was
dispossessed from the property, in execution of the decree
passed in the suit and therefore, he who is purported to be a
stranger to the decree, can very well adjudicate his claim of
independent right, title and interest in the decretal property
as per Order XXI Rule 99 CPC.

15. In so far as the claim of appellants that the predecessor of
the respondents, namely Mr. Raghuthaman, being pendent
lite transferee and hence would have no locus to file the
application seeking re-delivery, we have already held that
“any person” not a party to the suit or in other words a
stranger to the suit can seek re-delivery, after he has been
dispossessed. The term “Stranger” would cover within its
ambit, a pendent lite transferee, who has not been impleaded.
[…] The pendent lite purchaser has every right to defend his
right, title, interest and possession. […]
-xxx-

19. […] the High Court rightly set aside the order passed in
the Execution Petition and remanded the matter to the trial
court for fresh consideration, leaving all the issues including
the independent right, title or interest claimed by the
respondents in the property in question, to be adjudicated
therein. Therefore, we do not find any infirmity or illegality
in the judgment so rendered by the High Court, warranting
our interference.
(Emphasis supplied)
229. In Renjith (supra), the applicant under Rule 99 was a pendente lite
transferee of one of the judgement-debtors but was not impleaded
in the original suit. Although he was not a party to the original suit
and a stranger to the decree yet, since he derives his right through a
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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 transferee pendente lite of the judgment-
debtor and hence he cannot be given the benefit of an order under
Rule 100, that issue would be decided first as a preliminary issue in
the course of the said proceedings .


231. We have now explained in sufficient detail the scope of the bar
under Rule 102 and the scope of adjudication under Rule 101 if a
transferee pendente lite of the judgment-debtor prefers an application
under Rule 99. This position now begs the question whether such a
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transferee pendente lite of the judgment-debtor would be allowed to
file a separate suit, in case he does not prefer an application under
Rule 99 in view of the bar imposed by Rule 102? As we had
mentioned at the beginning of our discussion on this aspect, the
answer must necessarily be an emphatic ‘No’. The same reasoning
that we had adopted to observe that other persons falling under the
scope of Rules 97 or 99 would not be able to prefer a separate suit,
would apply here as well. When the executing court is vested with
the same power as the court before which a separate suit would be
filed and Rule 102 bars any relief to a transferee pendente lite of the
judgment debtor, why should a separate suit wherein an
adjudication which is akin to that under Rule 101 would be
conducted, be allowed? One must remember that it is the avowed
object of Section 52 of the Transfer of Property Act which has given
rise to Rule 102. The same section 52 would bar any relief being
accorded to the transferee pendente lite of the judgment-debtor in the
separate suit as well. To put it simply, the fate of a transferee pendente
lite of the judgment-debtor in the separate suit would be the same
as that of his fate under Rule 101. Therefore, there exists no special
reason to carve out an exception and allow the filing of a separate
suit for persons falling within the bar under Rule 102 when the end
result would be the same.

232. Before we close the discussion on this aspect, with a view to obviate
any confusion as regards the position of law expounded by us
above, we wish to advert to Rule 104 which we reproduce as under:

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“ 104. Orders under rule 101 or rule 103 to be subject to
the result or pending suit.— Every order made under rule
101 or rule 103 shall subject to the result of any suit that may
be pending on the date of commencement of the proceeding in
which such order, is made if in such 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 rule 97 or 99 as the case may be, if in such a suit that is
pending, the party against whom an order is made under Rules 101
or 103 has sought to establish a right which he claims to the present
possession of the property. To put it simply, if a person has already
filed a suit seeking to establish his right over the concerned property
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including that of possession, before the actual institution of an
application under rules 97 or 99 or before the cause of action to file
an application under rules 97 or 99 arose, it is only then that the
orders which come as a consequence of the application under Rule
97 or 99, would be made subject to the result of such a previously
instituted suit.


235. Such was the situation in Shamsher Singh (supra). The applicant
under Rule 99 who was dispossessed by way of execution of the
decree had already filed a suit over the same property in which he
claimed title on the basis of adverse possession.


236. This rule must not be read to mean that once the cause of action to
file an application under rule 99 has arisen, a party can resort to the
remedy of a separate suit instead.


V. Delineating when a third party could file an application under
Order XXI CPC and when he could resort to a separate suit in
order to assert his right, title and interest in the said property.

237. Having discussed rules 58, 89 to 92 and 99 to 104 respectively in
great detail, to avoid any confusion and to provide a more holistic
picture of when a separate suit praying for the relief of title, amongst
others, can be filed by a third party, when the property is sold in
execution of a decree, is elaborated as follows:

i. Scenario 1 - When Rule 99 is not involved, i.e. when the third
party filing the separate suit is not a person who has been in
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possession and subsequently, dispossessed in the course of
execution of the decree: