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SUPREME COURT OF INDIA
Sanjay Kumar, Alok Aradhe, JJ.
G.R. Selvaraj (Dead), through LRs. – Appellants
Versus
K.J. Prakash Kumar and others – Respondents
Civil Appeal No. 8887 of 2011
Decided On : 25-11-2025
Civil Procedure Code, 1908 – Order XXI Rule 90(3) – Execution of decree – Application seeking invalidation of sale – 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 executing Court that ground upon which application was made could not have been taken on or before the date on which proclamation of sale was drawn up – Not only were judgment debtors in case on hand put on notice at every stage during exercises undertaken by executing Court to reduce upset price from one unsuccessful sale to other, they also participated to an extent and then chose to refrain from doing so – They do not have right to claim that they were not put on notice, though they feebly contended to such effect – Record clearly negates their claim in that regard – Having failed to raise material irregularity in context of Order XXI Rule 66(2)(a) CPC at appropriate stage, it is not open to them to now raise such a belated plea – Judgment passed by High Court set aside and Judgment passed in Original Suit affirmed. (Paras 17, 18 and 19)
Facts of the case:
The issue in this appeal boils down to whether Order XXI Rule 90(3) CPC would have overriding effect barring the judgment debtors from seeking invalidation of sale when they could have but never raised the ground, that entire property need not have been sold to satisfy decree, at a point of time before last sale proclamation.
Findings of Court:
High Court, having noted bar postulated by Order XXI Rule 90(3) CPC in Para 31 of impugned judgment, failed to give effect to it assuming that obligation under Order XXI Rule 66(2)(a) CPC would operate independently upon Executing Court, irrespective of lapse on part of judgment debtors.
Result : Appeal allowed.
JUDGMENT :
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 IXth 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 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 IInd 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/-.
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.
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
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