CRP/1838/2026 of Palanivel Vs Lakshmanan (Decree Holder) (Died) 1. Aavuchigounde on 1 September 2026

ORDER

The judgment debtor is the revision petitioner. Challenging the dismissal of CMA No.4 of 2015 on the file of Additional Sub Court, Namakkal confirming the order in REA No.329 of 2014 in REP No.36 of 2004.

2. I have heard Mr.K.V.Babu and Mr.K.S.Jayaganesan for Mr.P.Navaneetha Krishnan, counsel for the revision petitioner and Mr.R.Nalliyappan, learned counsel for respondents 2 to 4 and Mr.M.Karthik, learned counsel for the first respondent.

3. Learned counsel for the revision petitioner Mr.K.V.Babu would firstly contend that the executing court has erroneously dismissed the application filed by the petitioner/judgment debtor for cancellation of the auction sale held on 01.09.2005, by refusing to set aside the order dated 25.3.2015.

4. The argument of Mr.K.V.Babu are multi-fold. Firstly, it is his contention that the procedure contemplated under the provisions of Order XXI have not been strictly complied with and therefore, the very proclamation of sale and the auction sale subsequently held are liable to be set aside. Secondly, it is his contention that the decree holder and the purchaser have been in active collusion, being closely related and that the auction sale itself is not a bonafide transaction. Thirdly, it is his contention that the executing court has not followed the mandate of Order XXI Rule 66 of Civil Procedure Code, by limiting the extent of property to be sold in public auction. It is his further contention that the suit property was clearly divisible and the entire property need not have been brought for sale in order to satisfy the decree amount. Fourthly, it is his contention that the upset price was reduced without any proper reasons and also without hearing the judgment debtor. To support his contentions, the learned counsel relied on the following decisions:

(i) Nani Gopal Paul vs T.Prasad Singh & Others, reported in AIR 1995 SC 1971;

(ii) Desh Bandhu Gupta vs N.L.Anand and Rajinder Singh, reported in 1994 1 LW 49;

(iii) Judgment of this Court in CMSA No.50 of 12 dated 05.02.2021 and

(iv) Kumar @ Kumaran vs Bose Ponnambalam and Others in CRP NPD Nos.4092 and 4093 of 2023 dated 26.07.2024.

Mr.K.V.Babu, would pray for the revision being allowed.

5. Per contra, Mr.R.Nalliyappan, learned counsel appearing for the decree holders would state that the petitioner has not made out any case for setting aside the court auction sale under order XXI Rule 90 of Ciivl Procedure Code. He would further state that all mandatory requirements have been followed by the executing Court and property was finally sold in public auction on 01.09.2005, in favour of the first respondent. The first respondent subsequently deposited the entire sale consideration and the said sale was also confirmed and the sale certificate was also issued in the name of the first respondent. It is his further contention that despite being aware of the court auction sale and confirmation in favour of the first respondent, the petitioner, mischievously executed a sale deed on 13.08.2008 in favour of one K.Muthlakshmi, in and by registered document No.3926 of 2008 and therefore, having transferred all subsisting interest in the suit property, the petitioner has no locus to seek cancellation of the court auction sale, that too, belatedly. He would further state that Article 127 of Limitation Act provides for period of limitation to challenge an auction sale. However, the challenge is made after lapse of nine years and the application itself was hopelessly barred in view of Article 127 of Limitation Act.

6. He would rely on the decision of this Court in K.M.Balasubramanian vs C.Loganathan, reported in 2017(1) MWN (Civil) 372 with regard to the maintainability of the revision petition at the instance of the petitioner who has already conveyed his interest in the subject property. That apart, he would also invite my attention to the various failed attempts made by the petitioner and his family members in denying the fruits of the decree to the successful plaintiff.

7. In this regard, he invites my attention to the suit filed in O.S.No.207 of 2005 by the judgment debtor/daughter and O.S.No.216 of 2008 by the judgment debtor/son. Both the suits were carried in by their first appeals in A.S.No.1 of 2010 and A.S.No.8 of 2010 respectively. Both the appeals were admittedly dismissed on 15.07.2010 and 07.10.2010 respectively. He would also state that the petitioner's daughter also filed REA No.95 of 2007 objecting to the execution of the delivery warrant, claiming right over the property, which application was also dismissed on 29.08.2013. He would therefore state that the petitioner has gone all out to defeat the lawful entitlement of the decree holder and there is no error committed by the trial court warranting interference in this revision. In support of his submissions, he relied on the following decisions:-

(i) Mohan Lal vs Hari Prasad Yadav and Others, reported in (1994) 4 SCC 177;

(ii) Annapurna vs Mallikarjun and another, reported in 2014

(2) MWN (Civil) 110;

(iii) N.Vivekanandhan vs Ammapillai and Ohters, reported in 2020 (1) CTC 757

(iv) Dadi Jaganndham vs Jammulu Ramulu and Others, reported in 2001(4) CTC 314

8. Mr.M.Karthik, learned counsel for the first respondent/auction purchaser would adopt the submissions made by Mr.R.Nalliyappan, learned counsel for the legal heirs of the original plaintiff/decree holder.

9. I have carefully considered the submissions advanced by the learned counsel for the parties.

10. A suit in O.S.No.3 of 1999 was filed for recovery of money. The suit was decreed in favour of the plaintiff and it was put to execution in REP No.36 of 2004. The decree holder sought to attach and sell the immovable property of the judgment debtor to realise the decree amount. In the said execution proceedings, the judgment debtor remained exparte and thereafter, filed REA No.237 of 2004 to set aside the exparte order. The said application was allowed on condition that the petitioner should deposit Rs.20,000/- within a specified date. The said conditional order was not complied with and the application filed by the petitioner was dismissed. Subsequently, the executing Court went ahead with the execution proceedings and settled the sale proclamation and also fixed the upset price. Noticing that there were no bidders, the executing Court reduced the upset price and ultimately, the property of the judgment debtor was sold in public auction on 01.09.2005 and the first respondent, being the higher bidder was declared as the successful auction purchaser. He also deposited the entire sale consideration and the sale certificate was also issued in his favour. All this happened in 2006. Two years later, the petitioner himself, despite being fully aware of the court auction sale, alienated the property belonging to him, by executing a sale deed on 13.08.2008 in favour of one K.Muthulakshmi. Suppressing the said sale effected by the petitioner and that too, after lapse of several years, the petitioner filed an application under Order XXI Rule 90 of Civil Procedure Code in 2014, praying for setting aside the court auction sale. Though Mr.K.V.Babu has made elaborate submissions with regard to the mandatory steps contemplated under Order XXI CPC not being followed, firstly, the petitioner, in my considered opinion, has to get over the aspect of delay.

11. Article 127 of the Limitation Act provides the period for challenging a Court auction sale within a period of sixty days from the date of the sale. Admittedly, the application to set aside the court auction sale was filed after a lapse of six years. The executing court, on considering the claims of the petitioner and the objections of the respondent, dismissed REA No.329 of 2014 viz., Section 47 application. Aggrieved by the same, the petitioner preferred CMA No.4 of 2015 before the Additional Sub Court, Namakkal. The said appeal was dismissed on 07.02.2026, affirming the findings of the executing Court, holding that the auction sale has attained finality and the bonafide auction purchaser’s rights cannot be unsettled after efflux of several years.

12. With regard to the aspect of limitation, admittedly, the auction sale was conducted on 01.09.2005 and was confirmed on 21.11.2006. Article 127 of Limitation Act, as already discussed herein, prescribes only sixty days for taking out an application to set aside a court auction sale. However, the application filed by the petitioner invoking Order XXI Rule 90 of CPC was filed only in the year 2014. The said application was therefore hopelessly barred by limitation. The Hon’ble Supreme Court in Mohan Lal’s case, held that the executing court cannot even entertain an application challenging a court auction sale after the expiry of the sixty days period prescribed in Article 127 of the Limitation Act. The Hon’ble Supreme Court further held that neither Section 5 of the Limitation Act nor Section 148 of the Code of Civil Procedure can be resorted to, seeking enlargement of time.

13. Similarly, in Annapurna’s case, the Hon’ble Supreme Court held that any objections to court auction sale will have to be taken within sixty days and belated objections cannot be entertained in order to unsettle a confirmed sale. This Court in N.Vivekanandhan’s case held that even if there is a violation of the procedure contemplated under Order XXI Rule 72 CPC, the sale can at best be voidable and not void and a challenge to the sale deed beyond the statutory period of sixty days is barred by law of limitation.

14. Even in Dadi Jaganndham’s case, the Hon’ble Supreme Court held that the judgment debtor has an option to deposit the decretal amount within thirty days from the

date of sale and if such option was exercised in right earnest, then, the executing Court is entitled to set aside the sale. The Hon’ble Supreme Court, however, held that the discretion available to the executing court survives only between the 31st day and the 60th days and not thereafter.

15. On the facts of the present case, I find that the petitioner has not even attempted to deposit the decretal amount by taking out an application, leave alone, compliance of the mandate by depositing the decretal amount within a period of sixty days. Further, as rightly pointed out by Mr.R.Nalliyappan, the petitioner has also sold the property, originally belonging to him, by executing a sale deed on 13.08.2008 in favour of one K.Muthulakshmi under registered sale deed bearing document No.3926 of 2008. Therefore, even on the date of filing REA No.329 of 2014, I am unable to see how the petitioner could have maintained the application.

16. This Court in K.M.Balasubramanian ‘s case, has held that when the judgment debtor did not have any subsisting right in the subject property, having alienated the same, then, the judgment debtor would have no locus to challenge the court auction sale.

17. However, at this juncture, it is relevant to factor the arguments of Mr.K.V. Babu, learned counsel for the revision petitioner that the petitioner was never aware of the execution proceedings and therefore, the delay cannot be put against the revision petitioner and the objections of the revision petitioner regarding valuation, procedural violation at the stage of sale proclamation and fixing of the upset price will have to be entertained. It is in this regard, Mr.K.V. Babu relied on the decisions of the Hon’ble Supreme Court as well as this Court. In Nani Gopal’s case, the Hon’ble Supreme Court has held that when there is manifest illegality committed by the Court in conducting court auction sale, then, the Courts cannot remain a mute or helpless spectator and should immediately set aside the court auction sale. That was a matter where the Hon’ble Supreme Court despite being conscious of the law of limitation, the Hon’ble Supreme Court interfered, finding that a single Judge of the High Court dealing with Company Law matters had passed an Order in His Chambers, accepting the offer of one intending purchaser at the price of Rs.60,00,000/-, ignoring other offers on the field of a higher denomination and magnitude.

18. Admittedly, in the present case, there is no such illegality committed by the executing Court. In fact, finding that there are no bidders, the upset price was also reduced by the executing Court, by passing judicial orders. The revision petitioner cannot also claim ignorance since he himself had taken out an application to set aside the exparte order in the execution petition, which was in fact, allowed, imposing a condition to deposit Rs.20,000/-. However, the petitioner did not comply with the conditional order which resulted in dismissal of the application on 3.12.2004. I am unable to therefore countenance the arguments of Mr.K.V. Babu that the petitioner was in dark about the execution proceedings.

19. No doubt, law is well settled with regard to the requirements of Order XXI Rule 66 of Civil Procedure Code . This Court in Kumar @ Kumaran’s case, has held that non-compliance of Order XXI Rule 64 read with Order XXI Rule 66 result in a material irregularity and if there was any excessive execution, then, the same could be set right in revision petition. In the very same judgment, this Court also held that the interest of a third party auction purchaser cannot validate the sale in contravention to the provisions of Order XXI Rules 64 and 66 CPC. However, on facts, that was a case where for realising a decree amount of Rs.6,00,000/-, a property worth Rs.26,00,000/- was brought for sale.

20. A similar argument which was raised with regard to reduction of upset price was in fact rejected by this Court. However, finding favour with the violation of provisions of Order XXI Rules 64 and 66, this Court held that Court cannot waive its duty under Order XXI Rule 64 read with Order XXI Rule 66 CPC and if there is any contravention of these two Rules, then, the sale itself would have to necessarily go.

21. I am in entire agreement with the ratio laid down by this Court in Kumar @ Kumaran’s case. However, it is to be noticed that in the facts of the present case, considering two aspects viz., unexplained and inordinate delay and also the factum of judgment debtor himself having made multiple attempts to defeat the execution of the decree, whether it lies in the mouth of the judgment debtor to raise all these issues and question the court auction sale that too, belatedly, has to be necessarily seen.

22. As already pointed out by Mr.R.Nallaiyappan, the petitioner’s daughter as well as son filed separate suit for partition, one after the other, only in an attempt to defeat the execution of the decree in favour of the respondent. The appeal suits filed by the children of the petitioner were also dismissed. The daughter, in fact, even attempted to obstruct to the execution of the decree in favour of the respondent, which was also dismissed. Therefore, it is clear that the petitioner has left no stone unturned in somehow or the other trying to ensure that the respondent does not enjoy the fruits of the decree.

23. To top it all, the petitioner has even sold the property belonging to him after the auction sale into one K.Muthulakshmi, as already discussed herein above. Therefore, I am unable see how the petitioner could have even maintained an application seeking to challenge the court auction sale since the petitioner has no subsisting right, title or interest in the subject property even on the date of filing of the application seeking to set aside the court auction sale. Further, as already found, the very application is hopelessly barred by limitation.

24. Therefore, viewed from any angle, the petitioner is not entitled to any relief and the executing Court has rightly dismissed the application in and by well considered order, which, in my considered opinion, does not warrant interference in this revision which hs been filed under Section 115 of the Code of Civil Procedure.

25. In fine, there is no merit in this revision and the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.

26. Mr.R.Nalliyappan, learned counsel for the respondents 2 to 4 would state that the execution petition has been filed in the year 2004 and seeks a direction for expeditious disposal of the execution petition. Considering the recent decisions of the Hon'ble Supreme Court in Periyammal (Dead Thr. Lrs.) vs V. Rajamani and Anr. etc, reported in, 2025 (2) CTC 404 and Rahul S. Shah v. Jinendra Kumar Gandhi, reported in AIR 2021 SC 216, directing all Execution Petitions to be disposed of within a period of six months, I direct the executing Court viz., Additional Sub Court, Namakkal to dispose of REP No.36 of 2004 finally within a period of eight weeks from the date of receipt of a copy of this order. 01.09.2026 sr Index:yes Website:yes Speaking Order To

1. The Additional Sub Court, Namakkal 2, The Additional District Munsif Court, Namakkal

P.B.BALAJI.,J sr Pre-Delivery Order in CRP No. 1838 of 2026 01.09.2026