SRI G V H SWAMY vs SMT VENKATAMMA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 17 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 1224 OF 2020 (GM-CPC)
BETWEEN:
1. SRI G V H SWAMY
S/O LATE VEERANNA,
AGED 64 YEARS,
R/AT RAJABEEDHI, TAVAREKERE HOBLI,
BENGALURU SOUTH TALUK,
BENGLAURU-562 130.
…PETITIONER
(BY SRI. JAYARAJ .D.S, ADVOCATE)
AND:
1. SMT. VENKATAMMA
W/O MADAIAH,
AGED 79 YEARS,
R/AT RAMANAGARA TOWN,
BENGALURU DISTRICT-562 159.
2.
SRI. MADAIAH
S/O NANJAPPA
SINCE DEAD BY HIS LRS,
SMT. LINGAMMA
W/O LATE MADAIAH
AGED ABOUT 73 YEARS
3. SRI. CHANDRANNA
S/O LATE MADAIAH,
AGED 60 YEARS,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
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R2 AND R3 ARE R/AT DOOR NO.27/1,
10TH MAIN ROAD, SHIVANAHALLI,
RAJAJINAGAR, BENGALURU-560 011.
4. SMT. KENDAMMA
D/O LATE DODDANARASIMHAIAH,
W/O GANGADHARPPA,
AGED 93 YEARS,
R/AT KEMPADYAPANAHALLI,
CHUNCHANAKUPPE POST,
TAVAREKERE HOBLI, BENGALURU SOUTH TALUK,
BENGALURU-562 130.
5. SRI. LAKSHMINARAYANA
S/O LATE DODDANARASIMHAIAH,
AGED 91 YEARS,
R/AT MADAPATNA VILLAGE,
CHUNCHANAKUPE POST,
TAVAREKERE HOBLI, BENGALURU SOUTH TALUK,
BENGALURU-562 130.
6. SRI. CHIKKANARASIMHAIAH
S/O LATE DODDANARASIMHAIAH,
AGED 89 YEARS
R/AT MADAPATNA VILLAGE,
CHUNCHANAKUPPE POST,
TAVAREKERE HOBLI, BANGALORE SOUTH TALUK,
BENGALURU-562 130.
7. SMT. JAYALAKSHMI
W/O REVANNA,
S/O LATE DODDANARASIMHAIAH,
AGED 85 YEARS,
R/AT DYALALU VILLAGE,
CHUNCHANAKUPE POST,
TAVAREKERE HOBLI, BANGALORE SOUTH TALUK,
BENGALURU-562 130.
SMT.LAKSHMAMMA
W/O LATE CHIKKANARASAIAH,
SINCE DEAD BY HER LRS
Digitally Signed By:
SACHIN SHANKAR MAGADUM
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8.
WHO ARE ALREADY ON RECORD AS
OBJECTOR NOS. 6 AND 7
SMT. HANUMANARASAMMA
D/O LATE CIKKANARASAIAH
W/O SRINIVASA,
AGED 75 YEARS,
R/AT ARALIMARADAPALYA,
CHUNCHANAKUPPE POST,
TAVAREKERE HOBLI, BANGALORE SOUTH TALUK,
BENGALURU-562 130.
9. SRI. BALARAM
S/O LATE CHIKKANARASAIAH,
AGED 68 YEARS,
R/AT ANKKAYANAPALYA,
CHUNCHANAKUPPE POST,
TAVAREKERE HOBLI, BANGALORE SOUTH TALUK,
BENGALURU-560 030.
…RESPONDENTS
(BY SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR R4 TO R9;
R2 AND R3 ARE SERVED)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS PERTAINING TO THE EXECUTION PETITION
NO.6/1986 BEFORE THE HONBLE PRINCIPAL CIVIL JUDGE AND
JMFC AT MAGADI, QUASH THE IMPUGNED ORDER DATED
25.10.2019 IN ALLOWING THE APPLICATION DATED
25.09.1992 FILED BY THE FATHER OF OBJECTOR NOS.5 TO
7/R.8 AND 9 HEREIN AND APPLICATION DATED 16.10.1992
FILED BY THE FATHER AND MOTHER OF OBJECTOR NOS.1 TO
4/R-4 TO 7 HEREIN SOUGHT TO SET ASIDE THE SALE DATED
07.07.1992 HELD IN THE COURT IN FAVOUR OF THE AUCTION
PURCHASED/PETITIONER WITH RESPECT TO THE LAND
BEARING SURVEY NO.101 OF CHOLANAYAKANAHALLI VILLAGE
AND A HOUSE BEARING KHANESHUMARI NO.34 (OLD 19) 35
OF MADAPATNA VILLAGE I.E., ITEM NOS.2 AND 3 OF THE
SCHEDULE PROPERTIES RESPECTIVELY AND SETTING ASIDE
THE SALE CONDUCTED BY THE COURT DATED 07.07.1992
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HELD WITH RESPECT TO THE ITEM NOS.2 AND 3 OF THE
SCHEDULE PROPERTIES AND CONSEQUENTLY CANCELLING
THE SALE CERTIFICATE AND CONFIRMATION OF SALE AND
ENTITLING THE AUCTION PURCHASER/PETITIONER FOR THE
REFUND OF SALE MONEY FROM THE DECREE HOLDER/R-1 IN
EXECUTION PETITION NO.6/1086 VIDE ANENXURE-A; AND
ETC.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL ORDER
The petitioner, an auction purchaser, is before this
Court calling in question the order passed by the Executing
Court, whereby the sale conducted in respect of Item
Nos.2 and 3 of the schedule properties has been set aside
and, consequently, the sale certificate and confirmation of
sale have also been cancelled, with a direction to refund
the sale consideration deposited by the petitioner.
2. The controversy has its genesis in
O.S.No.428/1972 instituted by one Venkatamma along
with her daughter against her husband Madaiah seeking
maintenance. The suit came to be partly decreed by
Digitally Signed By:
SACHIN SHANKAR MAGADUM
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judgment and decree dated 03.07.1973. The decree
awarded maintenance at the rate of Rs.30/- per month to
Venkatamma, while the claim of the daughter for
maintenance came to be rejected. The decree also
determined arrears of maintenance payable to
Venkatamma in a sum of Rs.1,080/- and, significantly,
created a charge over Item No.1 of the suit schedule
property for securing the amount payable under the
decree. The judgment and decree were questioned by
Madaiah in R.A.No.30/1974. The appeal came to be
dismissed on 13.03.1975.
3. Thereafter, Venkatamma initiated execution
proceedings in E.P.No.6/1986. In the course of execution,
a public auction was conducted on 06.07.1992 and the
sale was concluded on 07.07.1992. The petitioner
emerged as the auction purchaser. The sale was thereafter
confirmed on 07.08.1992 and a sale certificate came to be
issued in favour of the petitioner.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
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4. Respondent Nos.4 to 9 questioned the sale
contending, inter alia , that they had purchased Item Nos.2
and 3 under registered sale deeds dated 31.07.1978 and
16.07.1979 respectively; that they had been in exclusive
possession and enjoyment of the said properties; that the
auction purchaser was aware of their possession and title;
and that, notwithstanding the decree having created a
charge only over Item No.1, Item Nos.2 and 3 were
brought to sale in execution.
5. It was further contended that Item Nos.2 and 3
had never been attached in execution and that the
Executing Court had failed to undertake the exercise
contemplated under Order XXI of the Code of Civil
Procedure, 1908 (for short ‘CPC') before ordering their
sale.
6. The objections came to be allowed by the
Executing Court. The sale in respect of Item Nos.2 and 3
was consequently set aside, the sale certificate and
Digitally Signed By:
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confirmation of sale were cancelled and refund of the sale
consideration was directed.
7. Aggrieved by the said order, the auction
purchaser is before this Court.
8. Learned counsel for the petitioner has
principally contended that the applications filed by the
objectors were hopelessly barred by limitation. It is
submitted that the auction sale was held on 07.07.1992,
whereas the application concerning Item No.3 was filed on
16.10.1992 and the application concerning Item No.2 was
filed on 25.09.1992. Thus, there was a delay of 101 days
and 80 days respectively.
9. Placing reliance upon Article 127 of the
Limitation Act, 1963, learned counsel would contend that
an application seeking to set aside a court sale under
Order XXI Rule 90 of CPC is required to be filed within
sixty days from the date of sale. Reliance is placed on the
judgments, particularly the judgment of the Hon’ble
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Supreme Court in Aarifaben Yunusbhai Patel v. Mukul
1
Thakorebhai Amin , to contend that the period of
limitation prescribed under Article 127 is mandatory and
delay cannot be condoned under Section 5 of the
Limitation Act, 1963. It is therefore contended that the
Executing Court ought to have rejected the applications at
the threshold.
10. Per contra, learned counsel appearing for the
objectors would contend that the objection is not one
founded merely upon a procedural irregularity in the
conduct of sale. The very property which was brought to
sale was not the property charged under the decree. It is
submitted that the decree created a charge only over Item
No.1, whereas Item Nos.2 and 3 had neither been charged
nor attached. The Executing Court, therefore, had no
justification whatsoever to bring those properties to sale.
1
(2020) 5 SCC 449
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11. It is further contended that the sale
proclamation did not disclose the value attributable to
Item No.1 separately from Item Nos.2 and 3 and that the
Executing Court failed to ascertain whether Item No.1
itself was sufficient to satisfy the decretal amount. There
was thus no judicial determination as to whether sale of
Item Nos.2 and 3 was at all necessary.
12. In the light of the rival submissions, the
following points arise for consideration:
i. Whether an application invoking Order XXI Rule 90 of
the CPC is governed by Article 127 of the Limitation
Act, 1963?
ii. Whether an objection questioning the very legality
and competence of the execution sale, as
distinguished from an application seeking setting
aside of a sale on the ground of material irregularity
or fraud in publishing or conducting the sale, can be
treated on the same footing as an application under
Order XXI Rule 90?
iii. Whether, on the facts of the present case, the sale of
Item Nos.2 and 3 was fundamentally defective,
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having regard to the decree creating a charge only
over Item No.1, the absence of attachment of Item
Nos.2 and 3, and the failure of the Executing Court
to determine whether sale of the said properties was
necessary for satisfaction of the decree?
iv. Whether the impugned order warrants interference in
exercise of the jurisdiction of this Court?
Finding on Point Nos.(i) to (iv):
13. There can be little controversy regarding the
general proposition of law that an application under Order
XXI Rule 90 of CPC seeking to set aside an execution sale
on the ground of material irregularity or fraud in
publishing or conducting the sale is governed by Article
127 of the Limitation Act,1963.
14. Article 127 prescribes a period of sixty days for
an application to set aside a sale in execution of a decree.
The Hon’ble Supreme Court in Aarifaben Yunusbhai
Patel (supra) has categorically held that an application
under Order XXI Rule 90 is subject to the said period of
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sixty days and that Section 5 of the Limitation Act cannot
be invoked to condone delay in an application under Order
XXI.
15. Therefore, insofar as the objectors seek to
assail the sale purely on the ground of material irregularity
or fraud in publishing or conducting the sale, Article 127
undoubtedly applies. The submission of the petitioner, to
this limited extent, deserves acceptance. But that does not
conclude the controversy. The Court must examine the
substance of the objection and the nature of the illegality
alleged, rather than merely the nomenclature assigned to
the application.
Distinction between Rules 89 and 90 of Order XXI of
CPC
16. It is necessary to keep the statutory scheme of
Order XXI in clear perspective. Order XXI Rule 89
proceeds on the footing that there is a validly conducted
sale, but the person seeking to have the sale set aside is
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entitled to do so upon satisfying the statutory
requirements prescribed under that Rule, principally by
depositing the amount specified therein.
17. Rule 90 stands on an entirely different footing.
It permits a person whose interests are affected by the
sale to seek setting aside of the sale on the ground of
material irregularity or fraud in publishing or conducting
the sale, subject to the further requirement that
substantial injury has resulted.
18. Thus, Rule 89 does not question the legality of
the sale process. It proceeds upon the existence of a sale
and provides a statutory mechanism for having that sale
set aside upon fulfilment of the prescribed conditions. Rule
90, on the other hand, attacks the sale because the
manner in which the sale was published or conducted is
vitiated by material irregularity or fraud.
19. This distinction becomes particularly important
where the objection is not merely that the proclamation
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was defective or that the property fetched an inadequate
price, but that the property itself was not liable to be sold
in execution in the manner in which it was brought to sale.
20. The Hon’ble Supreme Court has recognized that
while an objection falling squarely within Rule 90 is subject
to the limitation prescribed by Article 127, a challenge
asserting that the sale is a nullity on account of an
illegality going to the root of the execution stands on a
different footing. The nature of the objection, and not the
label placed upon the application, is determinative.
21. Consequently, the petitioner’s contention that
every objection concerning an execution sale necessarily
attracts Article 127 cannot be accepted in such absolute
terms.
The decree and the charge created thereunder
22. The starting point for examining the legality of
the sale must necessarily be the decree itself. The decree
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in O.S.No.428/1972 is not ambiguous. The decree-holder
was awarded maintenance and arrears thereof and the
Court specifically created a charge over Item No.1. There
is no finding in the decree creating any charge over Item
Nos.2 and 3. This distinction is not a matter of mere
formality.
23. A decree creating a charge upon a particular
property defines the security available to the decree-
holder against that property. The Executing Court cannot,
merely because it is seized of execution proceedings
arising out of a money liability, proceed mechanically to
bring every property described in the original suit schedule
to sale without first determining whether such property is
liable to execution and whether the statutory requirements
governing sale have been satisfied.
24. The execution Court is required to execute the
decree as it stands. It cannot enlarge the substantive
rights granted by the decree. Therefore, where the decree
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specifically creates a charge only over Item No.1, the first
question which necessarily arose before the Executing
Court was whether Item No.1 was sufficient to satisfy the
decreetal liability. Only thereafter could the Court examine
whether any other property of the judgment-debtor was
liable to be proceeded against and, if so, in what manner.
That exercise is conspicuously absent.
Order XXI Rule 64 of CPC— duty to sell only such
property as is necessary:
25. The statutory scheme contained in Order XXI
makes the position even clearer. Order XXI Rule 64
empowers the executing Court to order sale of the
property attached by it and liable to sale, or such portion
thereof as may seem necessary to satisfy the decree.
26. The expression “ or such portion thereof as
may seem necessary to satisfy the decree ” is not
surplusage. It embodies a legislative command requiring
the Executing Court to apply its mind to the question
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whether the property proposed to be sold, or only a
portion thereof, is sufficient to satisfy the decreetal
amount.
27. The Hon’ble Supreme Court in Desh Bandhu
2
Gupta v. N.L. Anand , while examining the scheme of
Order XXI, emphasized the duty of the executing Court to
apply its mind to the necessity and extent of the property
proposed to be sold. The Hon’ble Apex Court specifically
referred to Rules 64 and 66 and held that the executing
Court has a salutary duty to ensure that only so much of
the property as is necessary to satisfy the decree is sold.
28. Likewise, in Ambati Narasayya v. M. Subba
3
Rao , the Hon’ble Supreme Court held that it is the duty
of the executing Court to examine whether a portion of the
property would be sufficient to satisfy the decree and that
a sale conducted without such consideration would not
2
(1994) 1 SCC 131
3
1989 Supp (2) SCC 693
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conform to the mandate of Order XXI Rule 64. The
principle has subsequently been repeatedly applied.
Application of Order XXI Rule 64 to the present case
29. Tested on the aforesaid principle, the sale in the
present case cannot be sustained. The decree-holder had
a decree securing the decreetal liability by a charge over
Item No.1. The Executing Court was therefore required to
first determine:
a) what was the decreetal amount due;
b) what was the value of Item No.1;
c) whether Item No.1 was sufficient to satisfy the
decree;
d) if not, what further property, if any, was liable
to be proceeded against;
e) whether such property was liable to sale in
execution; and
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f) whether the sale of any additional property was
necessary to satisfy the balance decreetal
liability.
30. There is no indication from the record, as
placed before this Court, that any such exercise was
undertaken. Instead, Item Nos.2 and 3 were brought to
sale along with Item No.1 without the Executing Court first
recording a finding that sale of the charged property was
insufficient to satisfy the decree. Such an approach
defeats the very purpose of Rule 64. An execution sale
cannot be permitted to become an instrument by which
property far in excess of what is required to satisfy the
decree is brought to sale merely because the property
happens to be available in the execution schedule. The
executing Court is not a passive conduit for the decree-
holder’s request for sale. It has a statutory obligation to
supervise and regulate the execution process.
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Failure to bifurcate the value of the properties
31. The defect becomes still more pronounced when
the manner in which the sale proclamation was drawn up
is examined. Where several items of property are
proposed to be sold, the Executing Court must have before
it material enabling it to determine whether all the
properties are required to satisfy the decree. In the
present case, Item No.1 stood on an entirely different
footing because it alone was the property over which the
decree had expressly created a charge. The sale
proclamation ought therefore to have enabled the
Executing Court to ascertain the value of Item No.1
separately and to determine whether sale thereof would
satisfy the decree. There is no such exercise. There is also
no material to demonstrate that the Executing Court
applied its mind to the necessity of including Item Nos.2
and 3 in the sale proclamation.
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32. The failure is not merely a technical omission. It
goes to the heart of the statutory protection embodied in
Order XXI Rule 64. As observed by the Hon’ble Supreme
Court in Desh Bandhu Gupta (supra), the executing
Court is required to apply its mind before settling the
proclamation and determine whether the sale of the
property, or only a part thereof, is necessary to satisfy the
decree.
Absence of attachment of Item Nos.2 and 3
33. The next and more fundamental circumstance is
that Item Nos.2 and 3 had not been attached. Ordinarily,
where the decree-holder proceeds by attachment and sale,
attachment is not an empty procedural formality. Order
XXI Rules 54, 64 and 66 constitute a statutory sequence
governing the sale of immovable property in execution.
Rule 54 contemplates attachment of immovable property
and requires the prescribed order of attachment
prohibiting the judgment-debtor from transferring or
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charging the property. Rule 64 thereafter empowers the
Court to order sale of property attached by it and liable to
sale. Rule 66 governs the proclamation of sale.
34. Thus, once the decree-holder seeks execution
by attachment and sale, the executing Court must ensure
that the property proposed to be sold is property which
can lawfully be brought within that execution process. In
the present case, the record does not disclose any order of
attachment concerning Item Nos.2 and 3.
35. The matter therefore cannot be reduced to an
argument concerning an irregularity in the service or
publication of the sale proclamation. The question is
anterior: what was the legal foundation for bringing Item
Nos.2 and 3 to sale in the first place?
36. This Court is conscious that Section 51 of the
CPC recognizes execution by sale without attachment in
appropriate cases. Therefore, the mere absence of an
attachment cannot, divorced from the mode of execution
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adopted and the surrounding circumstances, be declared
universally fatal to every execution sale.
37. But that is not the factual situation here. The
present execution proceeded upon the basis of the
scheduled properties being brought to sale, while the
decree itself created a charge only over Item No.1, and
there is no material showing that the Executing Court
consciously exercised the statutory power to proceed
against Items 2 and 3 without attachment under Section
51(b), after determining their liability to execution. There
is, in other words, no judicial determination at all as to
why Items 2 and 3 were liable to be sold. That distinction
is crucial.
The rights claimed by the objectors
38. The objectors do not merely contend that the
property fetched a low price. Their specific case is that
they had acquired Item Nos.2 and 3 under sale deeds
dated 31.07.1978 and 16.07.1979 respectively and were
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in possession thereof. Whether those conveyances
ultimately confer an indefeasible title against the decree-
holder is a matter which this Court need not determine in
the present proceedings. What is material is that the
Executing Court was confronted with a serious assertion
that the properties proposed to be sold were not the
charged properties under the decree and that persons
claiming through prior registered conveyances were in
possession.
39. In such circumstances, the Executing Court was
required to examine the legal basis on which those
properties could be brought to sale. A sale cannot be
justified merely by saying that the properties found
mention in the original schedule. The decree is the source
of the execution jurisdiction, and the execution
proceedings must remain within the four corners of the
decree and the provisions of Order XXI.
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Order XXI Rule 66 and the sale proclamation
40. Order XXI Rule 66 casts an important obligation
upon the executing Court in settling the proclamation. The
proclamation must state, as fairly and accurately as
possible, the matters specified in the Rule, including the
property to be sold and its value. The object is not merely
to inform prospective bidders. The proclamation serves
another equally important purpose: it enables the Court
itself to determine the extent of sale necessary to satisfy
the decree and prevents the execution process from being
converted into an indiscriminate sale of the judgment-
debtor’s properties.
41. The Hon’ble Supreme Court in Desh Bandhu
Gupta (supra) has emphasized that the settlement of the
proclamation is a judicial exercise and that the Executing
Court is required to apply its mind to the matters
contemplated under Rule 66.
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42. In the present case, there is no satisfactory
material demonstrating that the Executing Court
separately examined the value of Item No.1 and thereafter
determined the necessity of including Items 2 and 3. The
proclamation, therefore, suffers from a fundamental
absence of judicial application of mind.
Material irregularity and substantial injury
43. Even assuming that the objections are
examined strictly within the framework of Order XXI Rule
90, the sale cannot be sustained. Rule 90(1) permits the
sale to be set aside where there has been material
irregularity or fraud in publishing or conducting the sale.
Sub-rule (2) requires the Court to be satisfied that
substantial injury has been sustained by reason of such
irregularity or fraud. The present case satisfies that test.
44. The objectors’ properties were subjected to a
court sale notwithstanding that:
Digitally Signed By:
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Verified
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a) the decree created a charge only over Item
No.1;
b) no charge was created over Item Nos.2 and 3;
c) Item Nos.2 and 3 were not shown to have been
attached;
d) there was no determination that Item No.1 was
insufficient to satisfy the decree;
e) there was no separate assessment or
bifurcation of the value of Item No.1;
f) there was no determination that sale of Items 2
and 3 was necessary; and
g) persons claiming through prior sale deeds
asserted possession and ownership over Items
2 and 3.
45. These are not isolated defects. They collectively
demonstrate that the statutory safeguards governing an
execution sale were not observed. The prejudice is self-
evident. A person claiming ownership and possession of
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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property has been deprived of that property through a
court auction without the Executing Court first determining
that the property was liable to be sold and that its sale
was necessary for satisfaction of the decree. That
constitutes substantial injury within the meaning of Rule
90.
Effect of Article 127 of the Limitation Act, 1963
46. The limitation objection raised by the petitioner
requires one further clarification. If the objectors’
applications are treated only and exclusively as
applications under Rule 90 seeking to set aside an
otherwise competent sale on the ground of material
irregularity in its publication or conduct, Article 127 would
undoubtedly apply and the applications filed beyond sixty
days would be barred. That is the principle declared by the
Hon’ble Supreme Court in Aarifaben Yunusbhai Patel
(supra).
Digitally Signed By:
SACHIN SHANKAR MAGADUM
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47. But the present case cannot be examined in
such a truncated manner. The objections strike at the very
foundation of the sale of Items 2 and 3. They question the
authority of the Executing Court to subject those
properties to execution in the first place, having regard to
the terms of the decree and the absence of any
demonstrated legal basis for bringing those properties to
sale. The distinction between a void sale and a sale which
is merely voidable for material irregularity is well
recognized. Where the objection goes to the root of the
execution and asserts that the sale itself was without
lawful foundation, the issue is not one of merely setting
aside a valid sale under Rule 90.
48. The Hon’ble Supreme Court in Desh Bandhu
Gupta (supra) recognized this distinction and held that
where the illegality goes to the root of the execution, the
sale may be treated as a nullity, whereas non-application
of mind regarding the extent of property required to
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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satisfy the decree constitutes a material irregularity
attracting Rule 90.
49. The present case contains both facets. The first
concerns the foundational legality of subjecting Items 2
and 3 to execution. The second concerns the failure to
comply with the mandatory safeguards under Rules 64 and
66. The first cannot be defeated merely by applying Article
127 to the second.
No prejudice to the auction purchaser
50. There is yet another circumstance which weighs
with this Court. The Executing Court has not declared that
the decree itself is unenforceable. Nor has the decree-
holder been deprived of the right to execute the decree.
What has been annulled is the sale of Items 2 and 3 which
was conducted without the necessary judicial
determination that those properties were liable to be sold
and were necessary for satisfying the decree. The
petitioner, being an auction purchaser, acquires only such
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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right as flows from a sale lawfully conducted by the
Executing Court. An auction purchaser cannot claim a
better right than what the execution process could lawfully
confer. The direction for refund of the sale consideration
consequently restores the parties to the position in which
they stood before the defective sale, while leaving the
decree-holder at liberty to proceed in accordance with law.
Accordingly, point No.(i) is answered in the ‘ affirmative’ ,
point No.(ii) is answered in the ‘ negative’ , point No.(iii) is
answered in the ‘ affirmative’ and point No.(iv) is
answered in the ‘ negative’ .
Conclusion:
51. The essential error committed in the execution
proceedings was the failure to recognize that an execution
sale is not merely an auction conducted by the Court, but
a statutory process hedged by safeguards intended to
protect both the decree-holder and the owner of the
property. The Executing Court was required to begin with
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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the decree. The decree created a charge over Item No.1
alone. The Court was thereafter required to determine
whether Item No.1 was sufficient to satisfy the decree.
52. If it was insufficient, the Court was required to
identify what further property was legally liable to
execution and whether sale of such property was
necessary. It was then required to settle an appropriate
proclamation under Rule 66, indicating the properties
proposed to be sold and their value, and to ensure
compliance with the requirements governing attachment
and sale. None of these exercises is shown to have been
undertaken in respect of Items 2 and 3.
53. Instead, those properties were brought to sale
notwithstanding the absence of any charge under the
decree and notwithstanding the absence of a
demonstrated attachment or other lawful foundation for
subjecting them to sale. Such a sale cannot be protected
merely by invoking the sanctity ordinarily attached to a
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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confirmed court sale. The Court cannot permit procedural
finality to validate what was substantively beyond the
authority of the executing process.
54. For the foregoing reasons, this Court is of the
considered view that the Executing Court was justified in
interfering with the sale of Item Nos.2 and 3. The order
under challenge does not suffer from any jurisdictional
error warranting interference under Article 227 of the
Constitution of India.
55. Accordingly, this Court proceeds to pass the
following:
ORDER
(i) The writ petition is dismissed .
(ii) The order passed by the Executing
Court setting aside the sale in respect of Item
Nos.2 and 3 of the schedule properties is
affirmed.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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(iii) The cancellation of the confirmation
of sale and the sale certificate insofar as Item
Nos.2 and 3 are concerned is affirmed.
(iv) The direction issued by the
Executing Court for refund of the sale
consideration deposited by the petitioner-
auction purchaser is also affirmed.
(v) It is, however, made clear that the
dismissal of this petition shall not preclude the
decree-holder from pursuing execution of the
decree in accordance with law, including by
proceeding against property legally liable to
execution and in strict compliance with the
provisions of Order XXI of the Code of Civil
Procedure, 1908.
(vi) No order as to costs.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
(SACHIN SHANKAR MAGADUM)
JUDGE
CA
List No.: 1 Sl No.: 30