Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
2025 INSC 1353
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8887 OF 2011
G.R. Selvaraj (Dead), through LRs. … Appellants
versus
K.J. Prakash Kumar and others … Respondents
J U D G M E N T
SANJAY KUMAR, J
1. By order dated 10.02.2009 passed in C.R.P. (NPD) No.2574 of
2007, a learned Judge of the High Court of Judicature at Madras
invalidated the auction sale held on 12.09.2002 by the learned
th
IX Assistant Judge, City Civil Court, Chennai, in Execution Petition No.
199 of 1998 in Original Suit No. 9158 of 1995. Aggrieved thereby, the
auction purchaser, G.R. Selvaraj, filed this appeal.
2. G.R. Selvaraj, the appellant, died during the pendency of this appeal
and his legal representatives, being his widow, five sons and two
Signature Not Verified
Digitally signed by
Deepak Guglani
Date: 2025.11.25
12:31:25 IST
Reason:
daughters, were brought on record. At the risk of the appellant(s), the
name of respondent No.4, Rasheeda Yasin, the decree holder, was
deleted from the array of parties, vide order dated 20.11.2012. As she is
not a necessary party anymore, her absence has no impact on this case.
3. O.S. No. 9158 of 1995 (earlier, C.S. No. 297 of 1995) was filed by
Rasheeda Yasin, respondent No. 4, against Komala Ammal and her son,
K.J. Prakash Kumar, for recovery of a sum of ₹3,75,000/- along with
interest and costs. It was her case that the defendants, along with late
K. Jagannathan, the husband of the first defendant and father of the
second defendant, jointly borrowed a sum of ₹2,00,000/- from her on
02.03.1992 and were, therefore, liable to repay the same to her along with
interest. The suit was decreed ex parte on 16.04.1997 by the learned
nd
II Assistant Judge, City Civil Court, Chennai, directing the defendants
therein to pay the plaintiff a sum of ₹3,75,000/- with interest on the
principal sum of ₹2,00,000/- @ 18% per annum, from the date of the plaint
till the date of realization, along with costs of ₹10,435.50/-.
4. Execution Petition No. 199 of 1998 was filed by Rasheeda Yasin on
20.01.1998 seeking execution of the decree dated 16.04.1997, by
attachment and sale of the property belonging to the defendants, viz., the
house and site, admeasuring 2120 square feet, situated at Door No. 90,
Astabujam Road at Choolai, (Old No. 43), Chennai. The site was, thus, a
little less than one Ground (2400 square feet). The decretal amount, as
on that date, stood at ₹4,98,145.50/-.
2
5. Komala Ammal and K.J. Prakash Kumar, the judgment debtors/
defendants, made an unsuccessful attempt to have the judgment and
decree dated 16.04.1997 set aside. They also participated in the
execution proceedings by filing various applications, including for
enlargement of time to make payments in instalments, as directed by the
executing Court. However, owing to their failure in complying with the
decree, the property mentioned above was directed to be attached on
14.12.1998. The sale papers were filed on 12.07.1999. Notice was issued
to the judgment debtors on 23.07.1999. On 07.09.1999, service was held
sufficient but the judgment debtors were called absent and they were set
ex parte. The first sale proclamation came to be issued thereafter on
01.11.1999, fixing the date of the auction sale as 05.01.2000. Considering
the valuation of the property by Rasheeda Yasin @ ₹10,50,000/- for
fixation of the upset price and the estimation by the Court Bailiff @
₹15,25,000/-, the executing Court fixed the upset price at ₹16,25,000/-.
However, there were no bids in the auction sale on 05.01.2000.
Thereupon, Rasheeda Yasin filed E.A. No. 271 of 2000 seeking reduction
of the upset price to ₹13,25,000/-. This E.A. was filed on 10.01.2000.
Notice was issued thereon by the executing Court on 18.01.2000, and
K.J. Prakash Kumar, judgment debtor No. 2, appeared in person on
24.02.2000 and sought time on behalf of himself and Komala Ammal,
judgment debtor No. 1. They filed their counter on 22.03.2000.
3
6. After enquiry and upon hearing the arguments of the judgment
debtors, the E.A. was ordered on 21.09.2000, reducing the upset price to
₹14,75,000/-. The auction sale was fixed on 30.01.2001. However, there
were no bids even on that day. Rasheeda Yasin, the decree holder,
thereupon, filed E.A. No. 4950 of 2001 seeking further reduction of the
upset price to ₹10,50,000/. Despite service of notice, the judgment
debtors, Komala Ammal and K.J. Prakash Kumar, failed to appear before
the executing Court on 08.11.2001. They were accordingly set ex parte
and the upset price was reduced to ₹12 lakh. An application to set aside
this order was unsuccessfully filed by the judgment debtors. As there were
no bids even at the upset price of ₹12 lakh, Rasheeda Yasin, the decree
holder, filed E.A. No. 2017 of 2002 seeking further reduction of the upset
price to ₹10,50,000/-. Despite service of notice, the judgment debtors
were called absent on 11.07.2002 and the upset price was reduced to
₹11,00,000/-. It is pursuant to this last exercise, that the sale was finally
held on 12.09.2002 and G.R. Selvaraj emerged successful at the
knockdown price of ₹11,03,000/-.
7. The sale certificate was issued to G.R. Selvaraj on 10.01.2003 after
he deposited the sale consideration amount before the executing Court,
which was duly handed over to Rasheeda Yasin, the decree holder. While
so, E.A. No. 475 of 2002 was filed by the judgment debtors, Komala
Ammal and K.J. Prakash Kumar, in E.P. No. 199 of 1993 under Order XXI
4
1
Rule 90 of the Code of Civil Procedure, 1908 , to set aside the sale held
on 12.09.2002. Significantly, in their application in E.A. No. 475 of 2002,
the judgment debtors, Komala Ammal and K.J. Prakash Kumar, mainly
raised the issue of reduction of the upset price, alleging that it was done
without notice to them, apart from the ground that the sale was not held
at the spot where the property was situated. They only made a bald
allegation that the proceedings of the sale were totally against Order XXI
th
Rule 66 CPC. By order dated 15.10.2004, the learned IX Assistant
Judge, City Civil Court, Chennai, dismissed the application.
8. The dismissal order was subjected to appeal in C.M.A. No. 17 of
2005 before the learned III Additional Judge, City Civil Court, Chennai.
Komala Ammal died during the course of these appeal proceedings and
her daughters, K.J. Hemalatha and K.J. Padmasini, were brought on
record as her legal representatives. The appellate Court dismissed the
appeal with costs, by judgment dated 13.07.2007. Aggrieved by this
judgment, K.J. Prakash Kumar and his sisters, K.J. Hemalatha and
K.J. Padmasini, filed CRP (NPD) No. 2574 of 2007 before the High Court.
9. What weighed with the High Court in ultimately holding in favour of
the judgment debtors was that the executing Court had not examined
whether sale of a part of the property in question would have satisfied the
1
For short, ‘CPC’.
5
decree, in terms of Order XXI Rule 66(2)(a) CPC. Noting that Order XXI
Rule 90(3) CPC placed a statutory bar on the judgment debtor from raising
any ground to set aside the sale which the judgment debtor could have
taken on or before the date on which the proclamation of sale was drawn
up, the High Court did not apply this bar as the executing Court was found
fault with on the aforestated count. Citing judgments of this Court, the High
Court held that the sale of the property in entirety caused substantial injury
to the judgment debtors and set aside the sale held on 12.09.2002.
Consequential directions were issued for initiation of fresh steps.
10. The issue in this appeal boils down to whether Order XXI Rule 90(3)
CPC would have an overriding effect barring the judgment debtors from
seeking invalidation of the sale when they could have but never raised the
ground, that the entire property need not have been sold to satisfy the
decree, at a point of time before the last sale proclamation. Significantly,
Order XXI Rule 90 CPC was substituted by Act No. 104 of 1976, with effect
from 01.02.1977. Prior thereto, Order XXI Rule 90 CPC read as under:
‘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 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) Provided that no sale shall be set aside on the ground of irregularity or
fraud unless upon the facts proved the Court is satisfied that the applicant
has sustained substantial injury by reason of such irregularity or fraud.’
6
After its amendment, Order XXI Rule 90 CPC now reads as under:
‘90. Application to set aside sale on ground of irregularity or fraud.—
(1) Where any immovable property has been sold in execution of a decree,
the decree-holder, or the purchaser, or any other person entitled to share in
a rateable distribution of assets, or whose interests are affected by the sale,
may apply to the Court to set aside the sale on the ground of a material
irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of irregularity or fraud in
publishing or conducting it unless, upon the facts proved, the Court is
satisfied that the applicant has sustained substantial injury by reason of
such irregularity or fraud.
(3) No application to set aside a sale under this rule shall be entertained
upon any ground which the applicant could have taken on or before the date
on which the proclamation of sale was drawn up.’
11. In this context, we may now refer to the decisions relied upon by the
2
High Court. In Ambati Narasayya vs. M. Subba Rao and another , the
execution sale was conducted on 31.05.1976 and an application was filed
under Order XXI Rule 90 CPC to set it aside. One of the grounds taken in
support of the application was that the judgment debtor therein was not
served with notice. However, the executing Court rejected his application.
In appeal, an additional ground was raised that the executing Court ought
to have sold only such portion of the land as would have satisfied the
decree and that the sale of the entire property was illegal. However, the
appeal and, thereafter, the revision filed before the High Court met with
failure. It was in these circumstances that the judgment debtor came
before this Court. Taking note of Order XXI Rule 64 CPC, this Court
2
1989 Supp (2) SCC 693
7
observed that in all execution proceedings, the executing Court has to first
decide whether it is necessary to bring the entire property to sale or only
such portion thereof as may seem necessary to satisfy the decree. It was
held that a sale, without examining this aspect and not in conformity with
this requirement, would be illegal and without jurisdiction. Reference was
3
made to Takkaseela Pedda Subba Reddi vs. Pujari Padmavathamma ,
wherein this Court had examined the scope of Order XXI Rule 64 CPC
and took a similar view to the effect that the executing Court derives
jurisdiction to sell attached properties only to the point at which the decree
is fully satisfied and the words ‘necessary to satisfy the decree’ clearly
indicate that no sale can be allowed beyond the decretal sum mentioned
in the sale proclamation. Taking note of this legal position, this Court held
that the sale of the entire extent of 10 acres for ₹17,000/- to satisfy a
decree for ₹2,400/- was unnecessary. It was further held that the land
could not be taken to be indivisible and that the executing Court could
have demarcated and sold a portion thereof. It was held that a duty is cast
upon the executing Court to sell only such property or portion thereof, as
would be necessary to satisfy the decree and this was the mandate of the
legislature, which could not be ignored. The sale was, accordingly, held
to be in contravention of Order XXI Rule 64 CPC.
3
(1977) 3 SCC 337
8
12. Notably, both Ambati Narasayya ( supra ) and Takkaseela Pedda
Subba Reddi ( supra ) were decisions delivered in the context of the
unamended Order XXI Rule 90 CPC, that is, prior to insertion of Order
XXI Rule 90(3) therein.
4
13. In Desh Bandhu Gupta vs. N.L. Anand & Rajinder Singh , a
similar question arose for consideration in relation to an execution sale
held on 06.07.1979, i.e., post the coming into force of the substituted
Order XXI Rule 90 CPC. Again, there was no notice to the judgment
debtor, the appellant. Further, there was no sale proclamation and no
notice was issued before settling the terms of the sale. However, the
executing Court rejected the application to set aside the sale, in view of
Order XXI Rule 90(3) CPC. It was held that pre-sale illegalities or
irregularities would not vitiate the sale and the application was dismissed.
The appellate Court as well as the High Court, in revision, followed the
same approach. The matter accordingly came before this Court.
14. Noting that a specific procedure was prescribed in the Code of Civil
Procedure, 1908, with regard to sale of attached properties during the
course of execution, this Court held that Order XXI Rule 66(1) enjoined
the Court that the details enumerated in Order XXI Rule 66(2) should be
specified as fairly and accurately as possible. It was observed that the
4
(1994) 1 SCC 131
9
duty to comply with it arises only after service of notice on the judgment
debtor who is, thus, given an opportunity in the settlement of the value of
the property. It was further observed that the absence of notice caused
irremediable injury to the judgment debtor as the absence of notice
disabled him from offering his estimate of the value and bringing intending
bidders at the time of the sale. It was, accordingly, held that a sale made
without notice to the judgment debtor is a nullity, as it divests the judgment
debtor of his right, title and interest in his property without an opportunity.
The omission of service of notice on the judgment debtor, per this Court,
would render void the action taken and the sale in pursuance thereof.
15. On facts, this Court found that the due procedure had not been
followed as the appellant was not given any notice and an occasion for
him to offer his valuation did not arise. It was observed that before
depriving a judgment debtor of the remedy under Order XXI Rule 90 CPC,
it must be seen whether he had notice from the executing Court and still
acquiesced, by taking no action before the date of sale, and if so, he would
then be precluded from assailing its legality or correctness thereafter.
Some of the observations made by this Court, which are of relevance
presently, are extracted hereunder:
‘14. …………. The Code, therefore, has taken special care charging the
duty on the Executing Court and it has a salutary duty and a legislative
mandate to apply its mind before settling the terms of proclamation and
satisfy that if part of such property as seems necessary to satisfy the
10
decree should be sold if the sale proceeds or portion thereof is sufficient
for payment to the decree-holder or the person entitled under the
decree to receive the amount and so much of that property alone
should be ordered to be sold in execution. In Ambati Narasayya v. M.
Subba Rao [1989 Supp (2) SCC 693 : AIR 1990 SC 119] this Court held that
it is the duty cast upon the court under Order 21 Rule 64 to sell only
such property or a portion thereof as may be necessary to satisfy the
decree. It is a mandate of the legislature which cannot be ignored.
……….In Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma [(1977)
3 SCC 337 : (1977) 3 SCR 692] to recover the decree debt in two decrees,
the properties situated in two different villages were brought to sale. In
the first instance the property in ‘D’ village fetched a sum of Rs 16,880,
which was sufficient to satisfy the decretal amount. The property in ‘G’
village was also sold which fetched a sum of Rs 12,000. This Court set
aside the sale of ‘G’ village. Admittedly the site in sale is to the extent of
550 sq. yards, situated in a commercial area around which the
petroleum installations are established. Though, as contended by Shri
Madhava Reddy, that there may be building regulation for division of
the property into portions, but the court made no attempt to sell a
portion of the property, maybe 100 yards or 150 yards out of it, or
whether undivided portion thereof would have satisfied the decree
debt. It could be legitimately concluded that the court did not apply its
mind at all to this aspect as well.
15. To get over the difficulty, Shri Madhava Reddy has fallen back on Order
21 Rule 90(3) of the Code, which provides that “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 of which the proclamation
of sale was drawn up”. Undoubtedly, this special rule was brought on statute
by 1976 Amendment Act. It is like a “caveat emptor” that the judgment-
debtor be vigilant and watchful to vindicate pre-sale illegalities or material
irregularities. He should not stand by to procrastinate the execution
proceedings. If he so does, Rule 90(3) forewarns him that he pays penalty for
obduracy and contumacy. Equally it is a reminder that the court should
be strict to comply with the procedural part under Rule 54(1-A) before
depriving the judgment-debtor of the remedy under Order 21 Rule 90
CPC. If he had notice from court and acquiesced by taking no action before
the date of sale, he would be precluded to assail its legality or correctness
thereafter. ‘ ( Emphasis is ours )
11
At the cost of repetition, we must lay stress on this Court’s specific
observation that, had it been a case where he had notice and acquiesced
by taking no action before the date of the sale, the judgment debtor would
be precluded from assailing its validity or correctness thereafter.
16. We may also note the recent decision of this Court in Bhikchand
S/o Dhondiram Mutha (Deceased) through LRs vs. Shamabai
5
Dhanraj Gugale (Deceased) through LRs in the context of an execution
sale. In that case, the sale was held on 09.08.1985 and the decree
holders, respondent Nos. 1 and 2 therein, themselves purchased the
attached property. The question arose as to why properties valued at over
₹1,05,700/- had to be sold to satisfy a decree for ₹27,694/-. Taking note
of Order XXI Rule 66(2) CPC and the law laid down in Ambati Narasayya
( supra ) and Takkaseela Pedda Subba Reddi ( supra ), this Court held that
the executing Court’s power to auction any property or part thereof also
enjoins an obligation on that Court to examine the issue as to whether the
sale of part of the property would have been sufficient to satisfy the
decree. However, this case did not involve the application of Order XXI
Rule 90(3) CPC, which postulates a bar against setting aside of the sale
at the behest of a judgment debtor, if he failed to raise an available ground
to invalidate it at the appropriate stage.
5
2024 INSC 411
12
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 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
13
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.
19. The judgment dated 10.02.2009 passed by the High Court of
Judicature at Madras in C.R.P. (NPD) No.2574 of 2007 is, therefore, set
aside, and the judgment dated 13.07.2007 passed by the learned
rd
III Additional Judge, City Civil Court, Chennai, in C.M.A. No. 17 of 2005,
is confirmed, thereby affirming the order dated 15.10.2004 passed by the
14
th
learned IX Assistant Judge, City Civil Court, Chennai, in E.A. No. 475 of
2003 in E.P. No. 199 of 1998 in Original Suit No. 9158 of 1995.
The appeal is allowed in the aforestated terms.
In the circumstances, there shall be no order as to costs.
……………………...J
[SANJAY KUMAR]
……………..………J
[ALOK ARADHE]
New Delhi;
November 25, 2025.
15
IN THE SUPREME COURT OF INDIA
2025 INSC 1353
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8887 OF 2011
G.R. Selvaraj (Dead), through LRs. … Appellants
versus
K.J. Prakash Kumar and others … Respondents
J U D G M E N T
SANJAY KUMAR, J
1. By order dated 10.02.2009 passed in C.R.P. (NPD) No.2574 of
2007, a learned Judge of the High Court of Judicature at Madras
invalidated the auction sale held on 12.09.2002 by the learned
th
IX Assistant Judge, City Civil Court, Chennai, in Execution Petition No.
199 of 1998 in Original Suit No. 9158 of 1995. Aggrieved thereby, the
auction purchaser, G.R. Selvaraj, filed this appeal.
2. G.R. Selvaraj, the appellant, died during the pendency of this appeal
and his legal representatives, being his widow, five sons and two
Signature Not Verified
Digitally signed by
Deepak Guglani
Date: 2025.11.25
12:31:25 IST
Reason:
daughters, were brought on record. At the risk of the appellant(s), the
name of respondent No.4, Rasheeda Yasin, the decree holder, was
deleted from the array of parties, vide order dated 20.11.2012. As she is
not a necessary party anymore, her absence has no impact on this case.
3. O.S. No. 9158 of 1995 (earlier, C.S. No. 297 of 1995) was filed by
Rasheeda Yasin, respondent No. 4, against Komala Ammal and her son,
K.J. Prakash Kumar, for recovery of a sum of ₹3,75,000/- along with
interest and costs. It was her case that the defendants, along with late
K. Jagannathan, the husband of the first defendant and father of the
second defendant, jointly borrowed a sum of ₹2,00,000/- from her on
02.03.1992 and were, therefore, liable to repay the same to her along with
interest. The suit was decreed ex parte on 16.04.1997 by the learned
nd
II Assistant Judge, City Civil Court, Chennai, directing the defendants
therein to pay the plaintiff a sum of ₹3,75,000/- with interest on the
principal sum of ₹2,00,000/- @ 18% per annum, from the date of the plaint
till the date of realization, along with costs of ₹10,435.50/-.
4. Execution Petition No. 199 of 1998 was filed by Rasheeda Yasin on
20.01.1998 seeking execution of the decree dated 16.04.1997, by
attachment and sale of the property belonging to the defendants, viz., the
house and site, admeasuring 2120 square feet, situated at Door No. 90,
Astabujam Road at Choolai, (Old No. 43), Chennai. The site was, thus, a
little less than one Ground (2400 square feet). The decretal amount, as
on that date, stood at ₹4,98,145.50/-.
2
5. Komala Ammal and K.J. Prakash Kumar, the judgment debtors/
defendants, made an unsuccessful attempt to have the judgment and
decree dated 16.04.1997 set aside. They also participated in the
execution proceedings by filing various applications, including for
enlargement of time to make payments in instalments, as directed by the
executing Court. However, owing to their failure in complying with the
decree, the property mentioned above was directed to be attached on
14.12.1998. The sale papers were filed on 12.07.1999. Notice was issued
to the judgment debtors on 23.07.1999. On 07.09.1999, service was held
sufficient but the judgment debtors were called absent and they were set
ex parte. The first sale proclamation came to be issued thereafter on
01.11.1999, fixing the date of the auction sale as 05.01.2000. Considering
the valuation of the property by Rasheeda Yasin @ ₹10,50,000/- for
fixation of the upset price and the estimation by the Court Bailiff @
₹15,25,000/-, the executing Court fixed the upset price at ₹16,25,000/-.
However, there were no bids in the auction sale on 05.01.2000.
Thereupon, Rasheeda Yasin filed E.A. No. 271 of 2000 seeking reduction
of the upset price to ₹13,25,000/-. This E.A. was filed on 10.01.2000.
Notice was issued thereon by the executing Court on 18.01.2000, and
K.J. Prakash Kumar, judgment debtor No. 2, appeared in person on
24.02.2000 and sought time on behalf of himself and Komala Ammal,
judgment debtor No. 1. They filed their counter on 22.03.2000.
3
6. After enquiry and upon hearing the arguments of the judgment
debtors, the E.A. was ordered on 21.09.2000, reducing the upset price to
₹14,75,000/-. The auction sale was fixed on 30.01.2001. However, there
were no bids even on that day. Rasheeda Yasin, the decree holder,
thereupon, filed E.A. No. 4950 of 2001 seeking further reduction of the
upset price to ₹10,50,000/. Despite service of notice, the judgment
debtors, Komala Ammal and K.J. Prakash Kumar, failed to appear before
the executing Court on 08.11.2001. They were accordingly set ex parte
and the upset price was reduced to ₹12 lakh. An application to set aside
this order was unsuccessfully filed by the judgment debtors. As there were
no bids even at the upset price of ₹12 lakh, Rasheeda Yasin, the decree
holder, filed E.A. No. 2017 of 2002 seeking further reduction of the upset
price to ₹10,50,000/-. Despite service of notice, the judgment debtors
were called absent on 11.07.2002 and the upset price was reduced to
₹11,00,000/-. It is pursuant to this last exercise, that the sale was finally
held on 12.09.2002 and G.R. Selvaraj emerged successful at the
knockdown price of ₹11,03,000/-.
7. The sale certificate was issued to G.R. Selvaraj on 10.01.2003 after
he deposited the sale consideration amount before the executing Court,
which was duly handed over to Rasheeda Yasin, the decree holder. While
so, E.A. No. 475 of 2002 was filed by the judgment debtors, Komala
Ammal and K.J. Prakash Kumar, in E.P. No. 199 of 1993 under Order XXI
4
1
Rule 90 of the Code of Civil Procedure, 1908 , to set aside the sale held
on 12.09.2002. Significantly, in their application in E.A. No. 475 of 2002,
the judgment debtors, Komala Ammal and K.J. Prakash Kumar, mainly
raised the issue of reduction of the upset price, alleging that it was done
without notice to them, apart from the ground that the sale was not held
at the spot where the property was situated. They only made a bald
allegation that the proceedings of the sale were totally against Order XXI
th
Rule 66 CPC. By order dated 15.10.2004, the learned IX Assistant
Judge, City Civil Court, Chennai, dismissed the application.
8. The dismissal order was subjected to appeal in C.M.A. No. 17 of
2005 before the learned III Additional Judge, City Civil Court, Chennai.
Komala Ammal died during the course of these appeal proceedings and
her daughters, K.J. Hemalatha and K.J. Padmasini, were brought on
record as her legal representatives. The appellate Court dismissed the
appeal with costs, by judgment dated 13.07.2007. Aggrieved by this
judgment, K.J. Prakash Kumar and his sisters, K.J. Hemalatha and
K.J. Padmasini, filed CRP (NPD) No. 2574 of 2007 before the High Court.
9. What weighed with the High Court in ultimately holding in favour of
the judgment debtors was that the executing Court had not examined
whether sale of a part of the property in question would have satisfied the
1
For short, ‘CPC’.
5
decree, in terms of Order XXI Rule 66(2)(a) CPC. Noting that Order XXI
Rule 90(3) CPC placed a statutory bar on the judgment debtor from raising
any ground to set aside the sale which the judgment debtor could have
taken on or before the date on which the proclamation of sale was drawn
up, the High Court did not apply this bar as the executing Court was found
fault with on the aforestated count. Citing judgments of this Court, the High
Court held that the sale of the property in entirety caused substantial injury
to the judgment debtors and set aside the sale held on 12.09.2002.
Consequential directions were issued for initiation of fresh steps.
10. The issue in this appeal boils down to whether Order XXI Rule 90(3)
CPC would have an overriding effect barring the judgment debtors from
seeking invalidation of the sale when they could have but never raised the
ground, that the entire property need not have been sold to satisfy the
decree, at a point of time before the last sale proclamation. Significantly,
Order XXI Rule 90 CPC was substituted by Act No. 104 of 1976, with effect
from 01.02.1977. Prior thereto, Order XXI Rule 90 CPC read as under:
‘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 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) Provided that no sale shall be set aside on the ground of irregularity or
fraud unless upon the facts proved the Court is satisfied that the applicant
has sustained substantial injury by reason of such irregularity or fraud.’
6
After its amendment, Order XXI Rule 90 CPC now reads as under:
‘90. Application to set aside sale on ground of irregularity or fraud.—
(1) Where any immovable property has been sold in execution of a decree,
the decree-holder, or the purchaser, or any other person entitled to share in
a rateable distribution of assets, or whose interests are affected by the sale,
may apply to the Court to set aside the sale on the ground of a material
irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of irregularity or fraud in
publishing or conducting it unless, upon the facts proved, the Court is
satisfied that the applicant has sustained substantial injury by reason of
such irregularity or fraud.
(3) No application to set aside a sale under this rule shall be entertained
upon any ground which the applicant could have taken on or before the date
on which the proclamation of sale was drawn up.’
11. In this context, we may now refer to the decisions relied upon by the
2
High Court. In Ambati Narasayya vs. M. Subba Rao and another , the
execution sale was conducted on 31.05.1976 and an application was filed
under Order XXI Rule 90 CPC to set it aside. One of the grounds taken in
support of the application was that the judgment debtor therein was not
served with notice. However, the executing Court rejected his application.
In appeal, an additional ground was raised that the executing Court ought
to have sold only such portion of the land as would have satisfied the
decree and that the sale of the entire property was illegal. However, the
appeal and, thereafter, the revision filed before the High Court met with
failure. It was in these circumstances that the judgment debtor came
before this Court. Taking note of Order XXI Rule 64 CPC, this Court
2
1989 Supp (2) SCC 693
7
observed that in all execution proceedings, the executing Court has to first
decide whether it is necessary to bring the entire property to sale or only
such portion thereof as may seem necessary to satisfy the decree. It was
held that a sale, without examining this aspect and not in conformity with
this requirement, would be illegal and without jurisdiction. Reference was
3
made to Takkaseela Pedda Subba Reddi vs. Pujari Padmavathamma ,
wherein this Court had examined the scope of Order XXI Rule 64 CPC
and took a similar view to the effect that the executing Court derives
jurisdiction to sell attached properties only to the point at which the decree
is fully satisfied and the words ‘necessary to satisfy the decree’ clearly
indicate that no sale can be allowed beyond the decretal sum mentioned
in the sale proclamation. Taking note of this legal position, this Court held
that the sale of the entire extent of 10 acres for ₹17,000/- to satisfy a
decree for ₹2,400/- was unnecessary. It was further held that the land
could not be taken to be indivisible and that the executing Court could
have demarcated and sold a portion thereof. It was held that a duty is cast
upon the executing Court to sell only such property or portion thereof, as
would be necessary to satisfy the decree and this was the mandate of the
legislature, which could not be ignored. The sale was, accordingly, held
to be in contravention of Order XXI Rule 64 CPC.
3
(1977) 3 SCC 337
8
12. Notably, both Ambati Narasayya ( supra ) and Takkaseela Pedda
Subba Reddi ( supra ) were decisions delivered in the context of the
unamended Order XXI Rule 90 CPC, that is, prior to insertion of Order
XXI Rule 90(3) therein.
4
13. In Desh Bandhu Gupta vs. N.L. Anand & Rajinder Singh , a
similar question arose for consideration in relation to an execution sale
held on 06.07.1979, i.e., post the coming into force of the substituted
Order XXI Rule 90 CPC. Again, there was no notice to the judgment
debtor, the appellant. Further, there was no sale proclamation and no
notice was issued before settling the terms of the sale. However, the
executing Court rejected the application to set aside the sale, in view of
Order XXI Rule 90(3) CPC. It was held that pre-sale illegalities or
irregularities would not vitiate the sale and the application was dismissed.
The appellate Court as well as the High Court, in revision, followed the
same approach. The matter accordingly came before this Court.
14. Noting that a specific procedure was prescribed in the Code of Civil
Procedure, 1908, with regard to sale of attached properties during the
course of execution, this Court held that Order XXI Rule 66(1) enjoined
the Court that the details enumerated in Order XXI Rule 66(2) should be
specified as fairly and accurately as possible. It was observed that the
4
(1994) 1 SCC 131
9
duty to comply with it arises only after service of notice on the judgment
debtor who is, thus, given an opportunity in the settlement of the value of
the property. It was further observed that the absence of notice caused
irremediable injury to the judgment debtor as the absence of notice
disabled him from offering his estimate of the value and bringing intending
bidders at the time of the sale. It was, accordingly, held that a sale made
without notice to the judgment debtor is a nullity, as it divests the judgment
debtor of his right, title and interest in his property without an opportunity.
The omission of service of notice on the judgment debtor, per this Court,
would render void the action taken and the sale in pursuance thereof.
15. On facts, this Court found that the due procedure had not been
followed as the appellant was not given any notice and an occasion for
him to offer his valuation did not arise. It was observed that before
depriving a judgment debtor of the remedy under Order XXI Rule 90 CPC,
it must be seen whether he had notice from the executing Court and still
acquiesced, by taking no action before the date of sale, and if so, he would
then be precluded from assailing its legality or correctness thereafter.
Some of the observations made by this Court, which are of relevance
presently, are extracted hereunder:
‘14. …………. The Code, therefore, has taken special care charging the
duty on the Executing Court and it has a salutary duty and a legislative
mandate to apply its mind before settling the terms of proclamation and
satisfy that if part of such property as seems necessary to satisfy the
10
decree should be sold if the sale proceeds or portion thereof is sufficient
for payment to the decree-holder or the person entitled under the
decree to receive the amount and so much of that property alone
should be ordered to be sold in execution. In Ambati Narasayya v. M.
Subba Rao [1989 Supp (2) SCC 693 : AIR 1990 SC 119] this Court held that
it is the duty cast upon the court under Order 21 Rule 64 to sell only
such property or a portion thereof as may be necessary to satisfy the
decree. It is a mandate of the legislature which cannot be ignored.
……….In Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma [(1977)
3 SCC 337 : (1977) 3 SCR 692] to recover the decree debt in two decrees,
the properties situated in two different villages were brought to sale. In
the first instance the property in ‘D’ village fetched a sum of Rs 16,880,
which was sufficient to satisfy the decretal amount. The property in ‘G’
village was also sold which fetched a sum of Rs 12,000. This Court set
aside the sale of ‘G’ village. Admittedly the site in sale is to the extent of
550 sq. yards, situated in a commercial area around which the
petroleum installations are established. Though, as contended by Shri
Madhava Reddy, that there may be building regulation for division of
the property into portions, but the court made no attempt to sell a
portion of the property, maybe 100 yards or 150 yards out of it, or
whether undivided portion thereof would have satisfied the decree
debt. It could be legitimately concluded that the court did not apply its
mind at all to this aspect as well.
15. To get over the difficulty, Shri Madhava Reddy has fallen back on Order
21 Rule 90(3) of the Code, which provides that “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 of which the proclamation
of sale was drawn up”. Undoubtedly, this special rule was brought on statute
by 1976 Amendment Act. It is like a “caveat emptor” that the judgment-
debtor be vigilant and watchful to vindicate pre-sale illegalities or material
irregularities. He should not stand by to procrastinate the execution
proceedings. If he so does, Rule 90(3) forewarns him that he pays penalty for
obduracy and contumacy. Equally it is a reminder that the court should
be strict to comply with the procedural part under Rule 54(1-A) before
depriving the judgment-debtor of the remedy under Order 21 Rule 90
CPC. If he had notice from court and acquiesced by taking no action before
the date of sale, he would be precluded to assail its legality or correctness
thereafter. ‘ ( Emphasis is ours )
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At the cost of repetition, we must lay stress on this Court’s specific
observation that, had it been a case where he had notice and acquiesced
by taking no action before the date of the sale, the judgment debtor would
be precluded from assailing its validity or correctness thereafter.
16. We may also note the recent decision of this Court in Bhikchand
S/o Dhondiram Mutha (Deceased) through LRs vs. Shamabai
5
Dhanraj Gugale (Deceased) through LRs in the context of an execution
sale. In that case, the sale was held on 09.08.1985 and the decree
holders, respondent Nos. 1 and 2 therein, themselves purchased the
attached property. The question arose as to why properties valued at over
₹1,05,700/- had to be sold to satisfy a decree for ₹27,694/-. Taking note
of Order XXI Rule 66(2) CPC and the law laid down in Ambati Narasayya
( supra ) and Takkaseela Pedda Subba Reddi ( supra ), this Court held that
the executing Court’s power to auction any property or part thereof also
enjoins an obligation on that Court to examine the issue as to whether the
sale of part of the property would have been sufficient to satisfy the
decree. However, this case did not involve the application of Order XXI
Rule 90(3) CPC, which postulates a bar against setting aside of the sale
at the behest of a judgment debtor, if he failed to raise an available ground
to invalidate it at the appropriate stage.
5
2024 INSC 411
12
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 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
13
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.
19. The judgment dated 10.02.2009 passed by the High Court of
Judicature at Madras in C.R.P. (NPD) No.2574 of 2007 is, therefore, set
aside, and the judgment dated 13.07.2007 passed by the learned
rd
III Additional Judge, City Civil Court, Chennai, in C.M.A. No. 17 of 2005,
is confirmed, thereby affirming the order dated 15.10.2004 passed by the
14
th
learned IX Assistant Judge, City Civil Court, Chennai, in E.A. No. 475 of
2003 in E.P. No. 199 of 1998 in Original Suit No. 9158 of 1995.
The appeal is allowed in the aforestated terms.
In the circumstances, there shall be no order as to costs.
……………………...J
[SANJAY KUMAR]
……………..………J
[ALOK ARADHE]
New Delhi;
November 25, 2025.
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