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2025 Supreme(Online)(KER) 13431
HIGH COURT OF KERALA
BASANT BALAJI, J
SAJI M MATHEW – Appellant
Versus
V.N VARGHESE – Respondent
OP(C) 1482/2023
JACOB P.ALEX, JOSEPH P.ALEX, AMAL AMIR ALI, MANU SANKAR P., Sarin PARVATHI KRISHNA, P.SANTHOSHKUMAR, SAUMYA.P.S
The execution court must determine all questions related to the execution of a decree, including alleged irregularities in auction sales, rather than dismissing applications based solely on procedural grounds.
Headnote:(A) Code of Civil Procedure, 1908 - Section 47 - Execution proceedings - Auction sale - The petitioner, an auction purchaser, challenged the confirmation of sale on grounds of irregularities and non-existence of the property sold. The execution court dismissed the application, stating that issues of irregularity should be addressed under Order 21 Rule 90. (Paras 4, 7)
(B) Execution of Decree - The court emphasized that all questions regarding execution, discharge, or satisfaction of a decree must be determined by the executing court, as per Section 47. The court must consider the merits of the case when irregularities are alleged. (Paras 5, 8)
Facts of the case:
The petitioner participated in an auction for a property that was later claimed to be non-existent, leading to the filing of an application to set aside the sale and return the purchase price.
Findings of Court:
The execution court's dismissal of the application was set aside, directing reconsideration of the petitioner's claims regarding the auction sale.
Issues: The main issues included whether the execution court should have considered the merits of the petitioner's claims regarding the auction sale and the nature of the property sold.
Ratio Decidendi: The court ruled that the execution court must address all questions related to the execution of the decree, including the nature of the property sold, and cannot dismiss the application solely based on procedural grounds.
Result: O.P.(C.) allowed; the execution court's order set aside.
JUDGMENT
(Dated this the 24th day of March 2025)
The petitioner is the auction purchaser in E.P.No.50 of 2011 in O.S.No.175 of 2007 on the files of the Sub Court, Thiruvalla. Respondent Nos.1 and 2 are decree holders, and respondent Nos. 3 and 4 are judgment debtors. The fifth respondent is the claim petitioner.
2. O.S.No.175 of 2007 is filed against respondents Nos.3 and 4, for the return of money. The suit was decreed on 27.2.2009, allowing respondents 1 and 2 to realise an amount of Rs.9,04,000/- together with interest. On the strength of the decree, E.P.No.50 of 2011 was filed seeking realisation of the decree amount by sale of an apartment in the residential complex constructed by respondents Nos.3 and 4. The court sale did not take place as there were no bidders. Later, respondent Nos.1 and 2 filed E.A. No.134 of 2014, seeking a sale of the building/godown purportedly bearing No.XXIV-540(2) of Thiruvalla Municipality, being the cellar floor of a building known as CVP Parliament Square. The auction was conducted on 3.9.2015. The petitioner participated in the said auction and successfully bid the auctioned property for an amount of Rs.15,00,100/-. One-fourth of the auction amount was deposited on 03.09.2015, and the balance sale consideration and stamp duty was paid, and the sale was confirmed on 15.12.2015.
3. While so, the 5th respondent filed E.A.No.187 of 2015, to set aside the sale under Order XXI Rule 90 and 91 CPC on the ground that the property sold in auction is the parking area of the building and the members of the 5th respondent are having a right over the property sold. The petitioner, therefore, made enquiries with the local authority, and it was realised that the property now sold and bought by him was not assigned any number by the Thiruvalla municipality, and the entire proceedings leading to the auction held on 03.09.2015 is vitiated by gross mistakes, illegalities and irregularities. Therefore, E.A.No.74 of 2023 was filed under section 47, read with Sections 144 and 151 CPC, to set aside the confirmation of court sale and to return the purchase price and stamp duty.
4. The execution court, by Ext.P7, dismissed the application, holding that if there was any irregularity or fraud in the sale, an application under Order 21 Rule 90 is the remedy, and a petition under Section 47 will not lie, and that too after the period of limitation under Article 127 of the Limitation Act.
5. Counsel for the petitioner, Sri.Jacob P Alex submitted that under Section 47 CPC, all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. Explanation II-(a) to the said Section states that a purchaser of the property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed. Explanation II-(b) to CPC prescribes that all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section. He relied on the judgment of the apex court in Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh [(1994) 1 SCC 131, wherein it is held as follows:
“17. Under Section 47 all questions relating to execution, discharge or satisfaction of the decree should be determined by the Executing Court alone. The pre-sale illegalities committed in the execution are amenable to the remedy under . Post-sale illegalities or irregularities causing substantial injury to the judgment- debtor are covered under Order 21 Rule 90. Sub-rule (1) thereof covers the field of material irregularities or fraud in publicity or conducting the sale. Sub-rule (2) enjoins proof thereof, and the court should find that by reason thereof, the applicant sustained
