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SUPREME COURT OF INDIA
ARUN MISHRA, UDAY UMESH LALIT, JJ.
SIDDAGANGAIAH (D) THR. LRS. - APPELLANTS
VERSUS
N.K. GIRIRAJA SHETTY (D) THR. LRS. - RESPONDENTS
CIVIL APPEAL NO. 5007 OF 2018
Decided on : 11-05-2018.
HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 [C.A. NO. 78/1956] - Section 28 - Transfer of property on right to maintenance - Effect - Section 28 cannot be invoked against transferee for consideration without notice.
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Section 11 - Res judicata - Application for setting aside auction sale in execution petition dismissed for default for appearance - Suit for declaration of title and possession filed by plaintiff after confirmation of sale suppressing dismissal of application - Plaintiff claiming to be bona fide purchaser not questioning auction so held by Court on ground of fraud or material irregularity - Finding of Appellate Court and High Court with respect to fraud and collusion of decree holder and judgment debtor in Court auction so held, is erroneous - Auction purchase made by decree-holder attained finality - Dismissal of application would operate as bar for entertaining of fresh suit. [2015 (1) ICC 854 (Kar), Reversed].
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 21, Rules 66, 67, 72 - Auction sale - Execution petition for enforcement of maintenance decree filed by wife - Executing Court permitting decree holder-wife to bid at time of auction of properties by setting off maintenance claim - Sale and its confirmation itself not questioned - Sale becomes absolute - No non-compliance of provisions of Order 21, Rules 66 and 72 - Plaintiff suppressing fact relating to sale and delivery of possession to wife is not entitled to any relief.
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 21, Rules 90, 92; Order 6, Rule 4 & Sections 47, 11 - Auction sale - Application for setting aside of auction sale dismissed for default of appearance - Bar as to fresh suit - When auction purchaser is decree-holder himself and when application is made to set aside sale on ground other than that covered by Rule 90 and no application has been made under Rule 89, case would fall under Section 47. Thus, it would depend upon grounds which are urged in application. It is permissible to join claim to set aside sale on ground of material irregularity under Order 21, Rule 90 with claim under Section 47 for declaration that sale is nullity as decree was passed after death of judgment-debtor. Objection by legal representatives of deceased judgment-debtor that suit land was ancestral property and sale was not binding on them can be raised under section 47 read with Order 21, Rule 90. However, it would depend upon nature of objection whether it was covered under Rule 90 of Order 21, CPC or not. There can be restoration of 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 order made under Rule 92(1) shall be brought by any person against whom such order is made. Order 21, Rule 92(1) provides that where application has been filed under Order 21, Rules 89, 90 or 91, same has been disallowed, court shall make order confirming sale and thereupon sale shall become absolute, and no suit shall lie as per mandate of sub-rule (3) of Rule 92 of Order 21, CPC against whom such an order is made. Order confirming sale may be made either where no application is made at all to set aside sale or where application is made and disallowed may be that it is dismissed for default. No suit shall lie in either case to set aside order confirming sale. Refusal to set aside sale is order appealable. In case court has set aside or refused to set aside a sale that would include a case where an application under Order 21, Rules 89, 90 or 91 has been dismissed for default. In present case admittedly application was filed by original plaintiff under Order 21, Rule 90 read with Section 47, on ground that he was owner of land in question purchased by sale deed dated 9.11.1974 for sum of Rs.10,000/- and was placed in possession. He was not aware of court sale. There was no beat of drums before auction was held. He was not aware of execution proceedings. He was purchaser for value. Property was not correctly valued. There were material irregularities in conduct of sale. Hardship would be caused in case auction was confirmed. Thus, prayer was made to set aside auction sale. Aforesaid application had been dismissed. Thus, Order 21, Rule 92(3) would operate as bar for entertainment of fresh suit on ground so urged. Plaintiff has totally suppressed factum of court auction sale and confirmation in plaint and did not make any averment that he had filed application under Order 21, Rule 90(1) and it was dismissed on 31.3.1978 whereas suit was filed on 19.4.1978 after 19 days of dismissal of objection and confirmation of sale. Plaintiff has not questioned auction so held by court on ground of fraud or any material irregularity. He has claimed himself to be bona fide purchaser. That plea was also raised in application filed under Order 21, Rule 90. Dismissal of same would preclude him to file fresh suit, it was incumbent upon him to question court auction on any permissible grounds necessary for entertainment of fresh suit but that has not been done. Grounds which were covered under Order 21, Rule 90 cannot be raised in instant matter. There is no pleading of fraud or collusion raised in plaint. First appellate court and High Court both have travelled beyond pleadings to give finding that auction sale was held fraudulently and in collusion. It is provided in Order 6, Rule 4, CPC that plea of fraud, misrepresentation, and collusion has to specifically set out in pleadings before any finding can be given on same. There is no evidence on record for substantiating plea which itself was not taken, it has neither been substantiated. Thus, first appellate court and High Court have committed gross illegality by giving finding with respect to fraud and collusion of decree-holder and judgment debtor in court auction so held. Auction purchase made by decree-holder had attained finality. Confirmation of sale was not questioned by plaintiff. Thus, no relief could have been granted and earlier orders have attained finality and operate as bar for entertainment of fresh suit.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 18 - Admission by parties - Execution petition for enforcement of maintenance decree filed by wife - Auction sale held by Court in accordance with law - Not a case set up that decree passed in maintenance suit was based upon fraud or collusive one - Settlement deed allotting properties in question allegedly entered into between husband and wife disowned by both - No admission after parting with interest made in execution petition inter se husband and wife - Provisions of Section 18, is not attracted.
JUDGMENT :
ARUN MISHRA, J.
1. Leave granted.
2. The appeal has been preferred by the defendant. Backdrop facts indicate that one Thopamma wife of Siddagirigowda filed suit O.S. No.245/1968 against her husband in the Court of Munsiff, Doddaballapur for grant of maintenance allowance at the rate of Rs.300 per month and for creating a charge on 13 properties mentioned in the plaint schedule. The suit was filed on 17.1.1968. During the pendency of the said suit said Siddagirigowda husband of Thopamma executed a sale deed for a sum of Rs.10,000/ in respect of survey No.11 admeasuring 5 acres 18 guntas and survey No.68/1 admeasuring 18 guntas, item Nos. 10 and 13 in the aforesaid suit in favour of N.K.Giriraja Shetty, father of respondent No.1. On 6.2.1975, a declaration of handing over possession was executed by Siddagirigowda in favour of purchaser regarding delivery of possession of the properties.
3. The suit filed by Thopamma i.e. O.S. No.245 of 1968 was decreed on 24.6.1976 that is by granting a maintenance allowance of Rs.100/per month recoverable from her husband from the date of filing of the plaint till realisation and charge were created on the suit schedule properties including the property which was sold to N.K. Giriraja Shetty on 9.11.1974. The first appeal against the same was dismissed on merits on 1.9.1976.
4. As the decree was not satisfied, Thopamma, the decreeholder filed an execution petition for enforcement of the decree of maintenance passed in the aforesaid suit. On 28.9.1977, Thopamma filed an application under Order XXI Rule 72 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) in Court to grant permission to bid at the time of auction of the properties by the court in the execution case by setting off the claim. The executing court permitted Thopamma to bid with respect to item Nos.1, 7, 8 and 13 by setting off the maintenance amount. The maintenance arrears had amassed to Rs.11,600/.
5. On 5.10.1977, auction of the schedule properties was held and Thopamma purchased item Nos.1, 7, 8 and 13 for Rs.10,185/.
6. Siddagirigowda filed an application under Order XXI Rule 90 CPC on 16.11.1977. Father of respondent No.1, N.K. Giriraja Shetty also filed an application under section 47 read with Order XXI Rule 90 CPC to set aside the sale held on 5.10.1977. On 5.1.1978 settlement deed was executed between Siddagirigowda and Thopamma by which item Nos.13, 5, 10 and 12 in O.S. No.245 of 1968 and Khasra No.12 (house) were allotted to Thopamma. However, no interest being claimed on the basis of the deed, and its execution had been denied by the parties to it.
7. On 31.3.1978, an application filed by Siddagirigowda was dismissed as not pressed under Order XXI Rule 90 whereas the application filed by N.K. Giriraja Shetty in execution case for setting aside the sale was dismissed in default of appearance and sale was confirmed in favour of Thopamma.
8. N.K. Giriraja Shetty suppressing the factum of filing of the application under Order XXI Rule 90 read with section 47 and its dismissal filed Suit No.109 of 1978 for the declaration of title and restoration of possession in the Court of Civil Judge, (Junior Division), Nelmangala. The suit was later on renumbered as O.S. No.85 of 1989. However, sale certificate was issued by the executing court in favour of Thopamma on 1.1.1979 and possession certificate on 29.1.1979 and possession was delivered to her.
9. The plaintiff, N.K. Giriraja Shetty averred in O.S. No. No.85 of 1989 that he had bona fide purchased the property for a sum of Rs.10,000/on 9.11.1974. Possession was also delivered, entries were made in the pahanies, he continued in possession till 1976. Thereafter, defendant dispossessed him in the year 1976. Defendant promised to hand over the possession as such the plaintiff did not take any action. However, he entered into a deed of settlement in favour of his wife on 5.1.1978 of which he had no right. The title continued to vest with the plaintiff. He prayed for mesne prof
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