SIDDAGANGAIAH (D) THR. LRS. versus N.K. GIRIRAJA SHETTY (D) THR. LRS. on 11 May 2018

[2018] 6 S.C.R. 457

SIDDAGANGAIAH (D) THR. LRS.

v.

N.K. GIRIRAJA SHETTY (D) THR. LRS.

(Civil Appeal No. 5007 of 2018)

MAY 11, 2018

[ARUN MISHRA AND UDAY UMESH LALIT, JJ.]

Code of Civil Procedure, 1908:

Or.XXI r.90, r/w s.47 – Suit for title and declaration filed onthe basis of purchase of suit property from defendant no.1 –Defendant no. 2 who is wife of defendant no. 1 contended thatdefendant no. 1 could not have sold the suit property to plaintiff asshe had obtained charge on the suit property in a maintenance suit– Her case was that her husband in collusion with the plaintifforchestrated a nominal and fictitious sale deed and the said saledeed was executed during the pendency of maintenance suit and,thus, was hit by s.52 of TP Act – The said suit was finally held in herfavour and she obtained decree and the property was auctionedand successfully purchased by her in court auction – Defendantno. 1 filed an application under Or.XXI, r.90 and plaintiff also filedan application under s.47 r/w Or.XXI, r.90 to set aside the sale –Application of defendant no.1 was dismissed as not pressed –Application by plaintiff for setting aside the sale was also dismissedin default of appearance and sale was confirmed – Defendant no.2sold the suit property to appellant-defendant no.3 – Plaintiffsuppressing the factum of having filed application under Or.XXI,r.90 and its dismissal filed suit for declaration of title and restorationof possession – Whether the suit was hit by principle of res judicatain view of dismissal of application under Or.XXI, r.90 r/w s.47 –Held: Where an application has been filed under Or.XXI, r.90 to setaside a sale on the ground of material irregularity, and the sale isconfirmed under r.92(1) of Or.XXI, the objector is precluded byvirtue of the provisions under Or.XXI, r.92(3) from bringing a suitto set aside the sale on the same grounds – The auction purchasemade by defendant no.2 (decree-holder) had attained finality –Confirmation of sale was not questioned by the plaintiff – Thus, no

457

A

B

CDEF

G

H

Arelief could have been granted – The earlier orders attained finalityand, therefore, operated as a bar for the entertainment of the freshsuit – As regards question of lis pendens, on the date of purchase ofsuit property by plaintiff, the suit filed by defendant no.2 waspending – Thus, the provisions contained in s.52 would clearly applyto the case – Suit for title and declaration liable to be dismissed –BTransfer of Property Act, 1882 – s.52 – lis pendens – Doctrine ofres judicata.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1.1 Sub-rule (1) of Order XXI Rule 90 makes itCclear that when any immovable property has been sold inexecution of a decree, the decree-holder or the purchaser or anyother person entitled to share in a ratable distribution of assets,or whose interests are affected by the sale, may apply to the Courtto set aside the sale on the ground of a material irregularity orfraud in publishing or conducting it. As provided in sub-rule (2)Dof Rule 90 of Order XXI merely on the ground of irregularity orfraud, the sale shall not be set aside unless the substantial injuryhas been caused to the objector by reason of such irregularity orfraud and such an objection should be the one which could nothave been raised before the date on which the proclamation ofEsale was drawn up as provided in Order XXI Rule 90 sub-rule (3)and mere defect or absence of attachment of the property shallnot be a ground for setting aside a sale. It is necessary to provethe substantial injury where fraud or material irregularity has takenplace whereby injustice had been suffered. In the present case,the application under Order XXI Rule 90 was filed by originalFplaintiff which was dismissed for default in appearance. It wasnonetheless dismissal of the application so filed. It was not a caseset up that the decree passed in maintenance case was obtainedby fraud and substantial injury thereby has been caused. [Para23] [470-C-F]GRajender Singh v. Ramdhar Singh & Ors. AIR 2001SC 2220 – relied on.

1.2 Where an application has been filed under Rule 90Order XXI CPC to set aside a sale on the ground of material H

irregularity, and the sale is confirmed under Rule 92(1) of OrderXXI, the objector is precluded by virtue of the provisions underOrder XXI Rule 92(3) from bringing a suit to set aside the saleon the same grounds. [Para 24] [470-G]

Brahayya v. Appayya, (1921) 44 Mad. 351 : 62 IC203 : AIR 21 Mad. 121, Ma Saw v. Maung Kyaw AIR28 Rang 18; Nand Kishore v. Sultan AIR 1926 Lah165 – approved.

1.3 When the auction purchaser is the decree-holderhimself and when an application is made to set aside the sale ona ground other than that covered by Rule 90 and no applicationhas been made under Rule 89, the case would fall under section47. Thus, it would depend upon the grounds which are urged inthe application. It is permissible to join a claim to set aside a saleon the ground of material irregularity under Order XXI, Rule 90with a claim under section 47 for a declaration that the sale is anullity as the decree was passed after the death of the judgment-debtor. Objection by legal representatives of deceased judgment-debtor that suit land was ancestral property and sale was notbinding on them can be raised under section 47 read with OrderXXI Rule 90. However, it would depend upon the nature of theobjection whether it was covered under Rule 90 of Order XXICPC or not. There can be restoration of the petition dismissedfor default filed under Order XXI Rule 90 and thereafter if salehas been confirmed, it is provided under Order XXI Rule 92(3)that no suit to set aside an order made under Rule 92(1) shall bebrought by any person against whom such an order is made. OrderXXI Rule 92(1) provides that where an application has been filedunder Order XXI Rule 89, 90 or 91, same has been disallowed,the court shall make an order confirming the sale and thereuponthe sale shall become absolute, and no suit shall lie as per themandate of sub-rule (3) of Rule 92 of Order XXI CPC againstwhom such an order is made. The order confirming the sale maybe made either where no application is made at all to set asidethe sale or where an application is made and disallowed may bethat it is dismissed for default. No suit shall lie in either case toset aside the order confirming the sale. The refusal to set aside a A

B

C

DEF

G

H

Asale is an order appealable. In case the court has set aside orrefused to set aside a sale that would include a case where anapplication under Order XXI Rule 89, 90 or 91 has beendismissed for default. [Para 25] [471-A-F]

Superior Bank Ltd. v. Budh Singh, (1924) 22 All LJB413 ; Akshia v. Govindarajulu (1924) 47 MLJ 549 –approved.

2.1 In the instant case admittedly an application was filedby original plaintiff under Order XXI, Rule 90 read with section47, on the ground that he was the owner of the land in questionCpurchased by a sale deed dated 9.11.1974 for a sum of Rs.10,000/- and was placed in possession. He was not aware of the courtsale. There was no beat of drums before the auction was held.He was not aware of the execution proceedings. He was apurchaser for value. The property was not correctly valued. Therewere material irregularities in the conduct of the sale. HardshipDwould be caused in case auction was confirmed. Thus, prayerwas made to set aside the auction sale. The aforesaid applicationhad been dismissed. Thus, Order XXI Rule 92(3) would operateas a bar for the entertainment of the fresh suit on the ground sourged. [Para 26] [471-G-H; 472-A-B]

E

2.2 The plaintiff has totally suppressed the factum of courtauction sale and confirmation in the plaint and did not make anyaverment that he had filed an application under Order XXI Rule90(1) and it was dismissed on 31.3.1978 whereas the suit wasfiled on 19.4.1978 after 19 days of the dismissal of the objectionFand confirmation of the sale. The plaintiff has not questioned theauction so held by the court on the ground of fraud or any materialirregularity. He has claimed himself to be a bona fide purchaser.That plea was also raised in the application filed under OrderXXI Rule 90. Dismissal of the same would preclude him to file afresh suit, it was incumbent upon him to question the court auctionGon any permissible grounds necessary for the entertainment offresh suit but that has not been done. Order VI Rule 4 CPCprovides that the plea of fraud, misrepresentation, and collusionhas to specifically set out in the pleadings before any finding canbe given on the same. There is no evidence on record forHsubstantiating the plea which itself was not taken, it has neither been substantiated. Thus, the first appellate court and the HighCourt have committed gross illegality by giving the finding withrespect to fraud and collusion of the decree-holder and judgmentdebtor in the court auction so held. The auction purchase madeby decree-holder had attained finality. Confirmation of sale wasnot questioned by the plaintiff. Thus, no relief could have beengranted and the earlier orders have attained finality and operateas a bar for the entertainment of the fresh suit. [Para 27, 28][472-B-D, E-G]

2.3 Coming to the question of lis pendens, decree-holderhad filed the suit in 1968 for the creation of charge of maintenanceinter alia on the properties in question. Explanation to Section52 of the TP Act makes it clear that pendency of a suit orproceeding shall be deemed to commence from the date of thepresentation of the plaint. Thus, on the date of execution of thesale deed on 9.11.1974, the suit filed by decree-holder waspending. Thus, the provisions contained in section 52 wouldclearly apply to the case. [Para 29] [472-G-H; 473-A-B]

Nagubai Ammal & Ors. v. B. Shama Rao & Ors.

AIR 1956 SC 593 – relied on.

Nagubai Ammal & Ors. v. B. Shama Rao & Ors.

AIR 1956 SC 593 – relied on.

3. Section 39 of TP Act clearly makes out that charge ofmaintenance can be enforced against the immovable propertyheld by a transferee. In the instant case, the transferee was notput in possession of the property is apparent from the plaint andpossession of defendant No.1. The sale also does not appear tobe bona fide. It was clear with the intent to defeat the claim of thewife for maintenance that is why possession had not been handedover. The case of the plaintiff that though sale deed was executedin 1974, defendant No.1 again took forcible possession in 1976,is not worthy of acceptance. Apart from that it is not so pleadedin the application under Order XXI Rule 90 that he was not awareof the pendency of the suit at the time of execution of the saledeed on 9.11.1974. He was a close friend of defendant No.1 andwas obviously aware of the factum of litigation pending since 1968.Thus, he could not be said to be a bona fide purchaser at all.Apart from that, the application under Order XXI Rule 90 readwith section 47 CPC containing the said plea stood dismissed.[Para 31] [474-B-E]

AB

C

D

E

F

G

H

462SUPREME COURT REPORTS

[2018] 6 S.C.R.

ASadhu Singh v. Gurdwara Sahib Narike & Ors. (2006)8 SCC 75 – held inapplicable.

Nani Gopal Paul v. T. Prasad Singh & Ors. (1995) 3SCC 579; Lal Chand v. VIIIth Addl. District Judge &Ors. (1997) 4 SCC 356 – referred to.

B4.1 In the instant case, there is no admission after partingwith the interest made in the execution proceedings inter sehusband and wife. The auction was held by the court in accordancewith law. It was not the case set up that the decree passed in themaintenance suit was based upon fraud or a collusive one. NorCwas such a case so set up with respect to the auction of theproperties in the execution of the decree. On the contrary, thehusband had preferred an appeal against the judgment and decreepassed in the maintenance case, which was dismissed on merits.[Para 40] [476-G-H; 477-A]

D4.2 After parting with the interest, no admission withrespect to the interest which has been parted away is admissible,Section 18 of Evidence Act is not attracted in the fact-situation ofthe instant case. The so-called settlement entered into betweenthe husband and wife on 5.8.1978 has not been pressed intoservice by either and has been disowned by the husband and wifeEboth. They set up a case that no such settlement had been enteredinto nor any claim had been made by them on the basis thereof.Had that been the case, the provisions of section 18 of theEvidence Act would have been attracted. [Para 40] [477-F-G]

V. Swarajyalaxmi & Ors. v. Authorised Officer, LandFReforms, AIR 2003 SC 2347: [2003] 3 SCR 575 – heldinapplicable.

Case Law Reference

SIDDAGANGAIAH (D) THR. LRS. v. N.K. GIRIRAJA SHETTY(D) THR. LRS.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5007of 2018.

From the Judgment and Order dated 18.12.2014 of the High Courtof Karnataka at Bengaluru in Regular Second Appeal No. 2633 of 2011.

Raju Ram Chandran, Sr. Adv., Joseph Pookkatt, Sheshagiri Rao,Dhawesh Pahuja, M/s. Ap & J Chambers, Advs. for the Appellant.

S. S. Nagananda, Sr. Adv., Shyam Koundinya, Ms. K. V. BharathiUpadhyaya, Advs. for the Respondent.

The Judgment of the Court was delivered by ARUN MISHRA, J. 1. Leave granted.

2. The appeal has been preferred by the defendant. Backdropfacts indicate that one Thopamma wife of Siddagirigowda filed suit O.S.No.245/1968 against her husband in the Court of Munsiff, Doddaballapurfor grant of maintenance allowance at the rate of Rs.300 per month andfor 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 suitsaid Siddagirigowda husband of Thopamma executed a sale deed for asum of Rs.10,000/- in respect of survey No.11 admeasuring 5 acres 18guntas and survey No.68/1 admeasuring 18 guntas, item Nos. 10 and 13in the aforesaid suit in favour of N.K.Giriraja Shetty, father of respondentNo.1. On 6.2.1975, a declaration of handing over possession was executedby Siddagirigowda in favour of purchaser regarding delivery of possessionof the properties.

3. The suit filed by Thopamma i.e. O.S. No.245 of 1968 wasdecreed on 24.6.1976 that is by granting a maintenance allowance ofRs.100/- per month recoverable from her husband from the date of filingof the plaint till realisation and charge were created on the suit scheduleproperties including the property which was sold to N.K. Giriraja Shettyon 9.11.1974. The first appeal against the same was dismissed on meritson 1.9.1976.

B

C

DEF

G

H

A4. As the decree was not satisfied, Thopamma, the decree-holderfiled an execution petition for enforcement of the decree of maintenancepassed in the aforesaid suit. On 28.9.1977, Thopamma filed an applicationunder Order XXI Rule 72 of the Code of Civil Procedure, 1908 (forshort, ‘CPC’) in Court to grant permission to bid at the time of auction ofthe properties by the court in the execution case by setting off the claim.BThe executing court permitted Thopamma to bid with respect to itemNos.1, 7, 8 and 13 by setting off the maintenance amount. Themaintenance arrears had amassed to Rs.11,600/-.

5. On 5.10.1977, auction of the schedule properties was held andThopamma purchased item Nos.1, 7, 8 and 13 for Rs.10,185/-.C

6. Siddagirigowda filed an application under Order XXI Rule 90CPC on 16.11.1977. Father of respondent No.1, N.K. Giriraja Shettyalso filed an application under section 47 read with Order XXI Rule 90CPC to set aside the sale held on 5.10.1977. On 5.1.1978 settlementdeed was executed between Siddagirigowda and Thopamma by whichDitem 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 claimedon the basis of the deed, and its execution had been denied by the partiesto it.

7. On 31.3.1978, an application filed by Siddagirigowda wasEdismissed as not pressed under Order XXI Rule 90 whereas theapplication filed by N.K. Giriraja Shetty in execution case for settingaside the sale was dismissed in default of appearance and sale wasconfirmed in favour of Thopamma.

8. N.K. Giriraja Shetty suppressing the factum of filing of theFapplication under Order XXI Rule 90 read with section 47 and its dismissalfiled Suit No.109 of 1978 for the declaration of title and restoration ofpossession 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 ThopammaGon 1.1.1979 and possession certificate on 29.1.1979 and possession wasdelivered to her.

9. The plaintiff, N.K. Giriraja Shetty averred in O.S. No. No.85of 1989 that he had bona fide purchased the property for a sum ofRs.10,000/- on 9.11.1974. Possession was also delivered, entries weremade in the pahanies, he continued in possession till 1976. Thereafter,H

defendant dispossessed him in the year 1976. Defendant promised tohand 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 on5.1.1978 of which he had no right. The title continued to vest with theplaintiff. He prayed for mesne profits also. Plaintiff had later on amendedthe plaint and averred that defendants have colluded with each other inmaking the plaintiff to invest heavy amount for purchasing properties bysuppressing the fact that there was a charge of maintenance on theproperties in O.S. No.245 of 1968. He was a bona fide purchaser ofthe property for value. Plaintiff prayed for a declaration that he was theabsolute owner of the scheduled properties, prayed for restoration ofpossession and mesne profits also. A suit was filed with respect to surveyNos.11 and 68/1 admeasuring 5 acres 39 guntas and 18 guntasrespectively.

10. In the written statement filed by Siddagirigowda, defendantNo.1, it was contended that sale deed dated 9.11.1974 was a nominalsale deed executed on collateral security and that sum of Rs.10,000/-was borrowed from the plaintiff, Siddagirigowda denied execution ofsettlement deed dated 5.1.1978 between him and wife Thopamma. Therewas a charge on properties in O.S. No.245 of 1968 which was decreedand possession of the land was never given to the plaintiff.

11. Thopamma, defendant No.2 in her written statement deniedplaint averment and contended that scheduled property belonged to thejoint family of Siddagirigowda, denied the execution of settlement deeddated 5.1.1978 and that it was not binding on her. She did not claim anyright in the suit schedule property under the said settlement deed. It wascontended that maintenance suit O.S. No.245 of 1968 was decreed andthere was a charge on the properties. The plaintiff was a friend and anassociate of her husband who was fully aware of the maintenance suitand to defeat the maintenance claim, plaintiff and her husband in collusionorchestrated a nominal and fictitious sale deed dated 9.11.1974. Thesaid sale deed was executed during the pendency of the lis and was hitby section 52 of the Transfer of Property Act, 1882 (for short ‘TP Act’).She had purchased the property through court auction in execution. Otheraverments made in the plaint were also denied. On 19.10.1981 acompromise petition was filed between the plaintiff and Siddagirigowda,defendant No.1 wherein defendant No.1 sought withdrawal of the caseset up against the plaintiff in the written statement.

ABC

D

EF

G

H

A12. Defendant No.2, Thopamma, amended her written statementon 5.3.1987 contending that the plaintiff was not an agriculturist. Hewas a businessman dealing in cloth business, gold and silver jewellery.Thus, he was not entitled to purchase agricultural land vide sale deeddated 9.11.1974.B13. Thereafter, plaint was amended to set up the plea of the bonafide purchaser for value which fact was denied by Thopamma in heradditional written statement. The plaintiff had the knowledge of thependency of maintenance suit of 1968.

14. On 23.6.1995, defendant No.1 took a somersault and filed aCcounterclaim that sale deed was nominal and fictitious and he was readyto get the reconveyance deed executed. The plaintiff filed objections tothe counterclaim that it was not maintainable, barred by limitation andplaintiff was not entitled after entering into a compromise, to file acounterclaim.

D15. On 7.11.1996, Thopamma executed a registered deed of salefor a consideration of Rs.2,20,000/- in favour of Siddagangaiah, defendantNo.3. Defendant No.1 died on 25.10.1998. Thereafter, Thopamma alsodied on 17.2.2000.

16. The purchaser Siddagangaiah, impleaded defendant No.3 filedEa written statement in O.S. No.85 of 1989 contending that he was abona fide purchaser for value. Thopamma had purchased the propertiesin the auction dated 5.10.1977. Sale certificate was issued and possessionhanded over on 29.1.1979. The application under section 47 read withOrder XXI Rule 90 filed by the plaintiff was dismissed. Plaintiff had notchallenged the auction sale held by the court in favour of Thopamma.FPlaintiff was well aware of rejection of his application under Order XXIRule 90. He did not file an appeal against the said dismissal order andfiled a suit suppressing the fact, same was not maintainable.

17. The trial court by judgment and decree dated 5.1.2007dismissed the suit. It was held that the plaintiff was not the absoluteGowner of the properties and the application under Order XXI Rule 90read with section 47 was dismissed. That order remained unchallenged.The pleadings in plaint were silent with regard to the said applicationfiled as well as its dismissal, besides the adjacent owners were notexamined. Auction sale by Court was not questioned in the plaint. The H

sale was hit by section 52 of the TP Act and the suit was barred by resjudicata. The plaintiff preferred an appeal being R.A. No.123 of 2009in the first appellate court. The appeal had been allowed vide judgmentand decree dated 4.11.2011. The first appellate court held that lis pendenswas not applicable. There was confirmation of sale and charge wascreated by fraud and collusion. The application under Order XXI Rule90 was dismissed in default of appearance and not on merits by aspeaking order. Against the decision of the first appellate court, a regularsecond appeal was filed and the same was dismissed vide judgment andorder dated 18.12.2014, hence the present appeal.

18. Shri Raju Ram Chandran, learned senior counsel appearingon behalf of the appellants, urged that the suit was hit by the principle ofres judicata in view of the dismissal of the application under Order XXIRule 90 CPC read with section 47 CPC, it could not be said to bemaintainable. The application was dismissed on 31.3.1978 in default ofappearance. The auction sale held by the court had remainedunchallenged. It has attained finality. Separate suit for declaration andpossession could not be said to be maintainable.

19. It was also urged that the decree in favour of defendant No.2,Thopamma attained finality and the dismissal of the application underOrder XXI Rule 90 operates as a bar on entertainment of the suit. Theplaintiff did not come to the court with clean hands and had suppressedthe material fact of dismissal of the application and auction held by thecourt. It was however urged that the sale in 1974 was hit by lis pendens.The property was purchased in 1974 whereas the suit was filed in 1968by defendant No.2 regarding maintenance and for the creation of thecharge on the schedule properties. The sale was clearly subject to theprovisions contained in section 52 of the TP Act. Lis commenced fromthe date of presentation of the plaint. The plaintiff could not be said to bea bona fide purchaser without notice. He was aware of the suit being afriend of the husband of Thopamma and had also filed an applicationunder Order XXI Rule 90. Possession was not handed over to him underthe so-called sale deed. The High Court erred in holding that the chargewas created on the date of the decree in the suit i.e., O.S. No.245 of1968. The High Court has not correctly interpreted the provisions of theHindu Adoption & Maintenance Act, 1956 (for short, “the Act”) nor theprovisions of the TP Act have been appropriately considered.

AB

CD

E

F

G

A20. Shri S.S. Nagananda, learned senior counsel appearing onbehalf of respondents, contended that the charge was created only onthe date of the decree in O.S. No.245 of 1968 on 24.6.1976. There wasno charge on the date of execution of sale deed in 1974. Having regardto sections 39 and 100 of the TP Act as the plaintiff was a bona fidepurchaser, the charge could not have been enforced against the propertiesBheld by him. The absolute title was conveyed.

21. Learned senior counsel has also relied upon sections 27 and28 of the Act so as to contend that it is only a decree which creates acharge that too not against a bona fide purchaser. It was not open toThopamma to question the sale deed executed by the plaintiff. It wasCfurther contended that the court held an auction on 5.10.1977 andconfirmed it on 31.3.1978 in a mechanical manner without a speakingorder, ignoring the sale deed dated 9.11.1974, decree holder was boundto disclose to the executing court the factum of execution of sale deed.The husband and wife had acted in collusion and fraudulently in order toDdefeat the right of the bona fide purchaser for consideration. The decree-holder Smt. Thopamma had selectively chosen four items of the suitproperty which included even the subject property purchased by theplaintiff on 9.11.1974. As the sale was never questioned it was binding.The dismissal of the suit by the trial court was illegal. The applicationwas dismissed under Order XXI Rule 90 in default. There was noEadjudication of same on merits. Thus, Smt. Thopamma failed to provethat she got a valid title to the property under the court auction dated5.10.1977 and confirmation of sale. Judgment debtor, husband hadchallenged the decree in maintenance case of 1968 in appeal and staywas granted subject to deposit of Rs.5,000/- which was not deposited.FThus, auction so held could not be said to be valid. No fresh saleproclamation was issued for holding an auction sale on 5.10.1977, it wasnecessary to obtain fresh sale orders from the court. The sale was void.As Siddagirigowda had no saleable interest in the property for whichauction was held by the court, non-compliance with the mandatory procedure can be considered by the court suo-moto as held in NaniGGopal Paul v. T. Prasad Singh & Ors. (1995) 3 SCC 579. The courtcannot be a mute spectator in view of the manifest illegality committedwhile conducting the court sale. There are concurrent findings by thefirst appellate court and High Court that the sale made in the executionwas fraudulent and collusive. No case for interference in the findings ofH

Facts

fact is made out. Husband of the decree-holder had withdrawn theapplication under Order XXI Rule 90 on 31.3.1978. There were no otherbidders except Thopamma. The application under Order XXI Rule 90filed by the plaintiff was dismissed for non-prosecution. The order wasnot on merits. Thus, there was no bar on entertainment of the suit. Theclaim of the appellant was false as the husband of decree-holderThopamma had filed a declaration in Form 7 claiming to be a tenantunder N.K. Giriraja Shetty which claim was rejected vide order dated24.8.1981 by the Land Tribunal. It was held that there was no tenancyand he had sold the property to N.K. Giriraja Shetty. Defendant No.1husband of Thopamma had filed a compromise petition in favour of N.K.Giriraja Shetty and later on filed a counterclaim that abated due to deathof Siddagirigowda and of his wife Thopamma, and none appeared toprosecute the same. Section 18 of the Indian Evidence Act, 1872 (forshort, “the Evidence Act”) had also been relied upon to contend thatafter parting with the interest, no admission could have been made, andthere was non-compliance of Order XXI Rule 66 CPC, and filing ofapplication order under Rule 90 CPC by plaintiff would not constituteadmission of irregularities and they were not cured. The plaintiff wasentitled to the decree that has been rightly granted. No case forinterference was made out in the appeal.

22. The first question for consideration is whether owing to thedismissal of the application filed under Order XXI Rule 90 by the plaintiff,the present suit could be said to be maintainable. The fact is not in disputethat after the court has held the auction, an application under Order XXIRule 90 was filed by the plaintiff, it was dismissed in default of appearanceon 31.3.1978. Order XXI Rule 90 CPC is extracted hereunder:

“[R. 90. Application to set aside sale on ground of irregularityor fraud.—

(1) Where any immovable property has been sold in execution ofa decree, the decree-holder, or the purchaser, or any other personentitled to share in a rateable distribution of assets, or whoseinterests are affected by the sale, may apply to the Court to setaside the sale on the ground of a material irregularity or fraud inpublishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraudin publishing or conducting it unless, upon the facts proved, the AB

CD

E

F

G

H

ACourt is satisfied that the applicant has sustained substantial injuryby reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall beentertained upon any ground which the applicant could have takenon or before the date on which the proclamation of sale was drawnBup.Explanation-The mere absence of or defect in, attachment ofthe property sold shall not, by itself, be a ground for setting asidea sale under this rule.]”

23. Sub-rule (1) of Order XXI Rule 90 makes it clear that whenCany immovable property has been sold in execution of a decree, thedecree-holder or the purchaser or any other person entitled to share in aratable distribution of assets, or whose interests are affected by the sale,may apply to the Court to set aside the sale on the ground of a materialirregularity or fraud in publishing or conducting it. As provided in sub-rule (2) of Rule 90 of Order XXI merely on the ground of irregularity orDfraud, the sale shall not be set aside unless the substantial injury hasbeen caused to the objector by reason of such irregularity or fraud andsuch an objection should be the one which could not have been raisedbefore the date on which the proclamation of sale was drawn up asprovided in Order XXI Rule 90 sub-rule (3) and mere defect or absenceof attachment of the property shall not be a ground for setting aside aEsale. It is necessary to prove the substantial injury where fraud or materialirregularity has taken place whereby injustice had been suffered. It washeld by this Court in Rajender Singh v. Ramdhar Singh& Ors., AIR2001 SC 2220 that mere inadequacy of price is not a ground for settingaside court sale. In the present case, the application under Order XXIFRule 90 was filed by original plaintiff which was dismissed for default inappearance. It was nonetheless dismissal of the application so filed. Itwas not a case set up that the decree passed in maintenance case wasobtained by fraud and substantial injury thereby has been caused.

24. Where an application has been filed under Rule 90 Order XXIGCPC to set aside a sale on the ground of material irregularity, and thesale is confirmed under Rule 92(1) of Order XXI, the objector is precludedby virtue of the provisions under Order XXI Rule 92(3) from bringing asuit to set aside the sale on the same grounds as held in Brahayya v.Appayya, (1921) 44 Mad. 351 = 62 IC 203 = AIR 21 Mad. 121, MaSaw v. Maung Kyaw, AIR 28 Rang 18; Nand Kishore v. Sultan, AIRH1926 Lah 165.

25. When the auction purchaser is the decree-holder himself andwhen an application is made to set aside the sale on a ground other thanthat covered by Rule 90 and no application has been made under Rule89, the case would fall under section 47 as has been laid down in SuperiorBank Ltd. v. Budh Singh, (1924) 22 All LJ 413; Akshia v.Govindarajulu (1924) 47 MLJ 549. Thus, it would depend upon thegrounds which are urged in the application. It is permissible to join aclaim to set aside a sale on the ground of material irregularity underOrder XXI, Rule 90 with a claim under section 47 for a declaration thatthe sale is a nullity as the decree was passed after the death of thejudgment-debtor. Objection by legal representatives of deceasedjudgment-debtor that suit land was ancestral property and sale was notbinding on them can be raised under section 47 read with Order XXIRule 90. However, it would depend upon the nature of the objectionwhether it was covered under Rule 90 of Order XXI CPC or not. Therecan be restoration of the petition dismissed for default filed under OrderXXI Rule 90 and thereafter if sale has been confirmed, it is providedunder Order XXI Rule 92(3) that no suit to set aside an order madeunder Rule 92(1) shall be brought by any person against whom such anorder is made. Order XXI Rule 92(1) provides that where an applicationhas been filed under Order XXI Rule 89, 90 or 91, same has beendisallowed, the court shall make an order confirming the sale andthereupon the sale shall become absolute, and no suit shall lie as per themandate of sub-rule (3) of Rule 92 of Order XXI CPC against whomsuch an order is made. The order confirming the sale may be madeeither where no application is made at all to set aside the sale or wherean application is made and disallowed may be that it is dismissed fordefault. No suit shall lie in either case to set aside the order confirmingthe sale. The refusal to set aside a sale is an order appealable. In casethe court has set aside or refused to set aside a sale that would includea case where an application under Order XXI Rule 89, 90 or 91 hasbeen dismissed for default.

26. In the instant case admittedly an application was filed by originalplaintiff under OrderXXI, Rule 90 read with section 47, on the groundthat he was the owner of the land in question purchased by a sale deeddated 9.11.1974 for a sum of Rs.10,000/- and was placed in possession.He was not aware of the court sale. There was no beat of drums beforethe auction was held. He was not aware of the execution proceedings.

ABC

DEF

G

H

AHe was a purchaser for value. The property was not correctly valued.There were material irregularities in the conduct of the sale. Hardshipwould be caused in case auction was confirmed. Thus, prayer was madeto set aside the auction sale. The aforesaid application had beendismissed. Thus, Order XXI Rule 92(3) would operate as a bar for theentertainment of the fresh suit on the ground so urged.B

27. The plaintiff has totally suppressed the factum of court auctionsale and confirmation in the plaint and did not make any averment thathe had filed an application under Order XXI Rule 90(1) and it wasdismissed on 31.3.1978 whereas the suit was filed on 19.4.1978 after 19days of the dismissal of the objection and confirmation of the sale. TheCplaintiff has not questioned the auction so held by the court on the groundof fraud or any material irregularity. He has claimed himself to be abona fide purchaser. That plea was also raised in the application filedunder Order XXI Rule 90. Dismissal of the same would preclude him tofile a fresh suit, it was incumbent upon him to question the court auctionDon any permissible grounds necessary for the entertainment of fresh suitbut that has not been done. The grounds which were covered underOrder XXI Rule 90 cannot be raised in the instant matter. There is nopleading of fraud or collusion raised in the plaint. Thus, the first appellatecourt and High Court both have travelled beyond the pleadings to give afinding that the auction sale was held fraudulently and in collusion. It isEprovided in Order VI Rule 4 CPC that the plea of fraud, misrepresentation,and collusion has to specifically set out in the pleadings before any findingcan be given on the same. There is no evidence on record forsubstantiating the plea which itself was not taken, it has neither beensubstantiated. Thus, the first appellate court and the High Court have Fcommitted gross illegality by giving the finding with respect to fraud andcollusion of the decree-holder and judgment debtor in the court auctionso held.

28. The auction purchase made by decree-holder Thopamma hadattained finality. Confirmation of sale was not questioned by the plaintiff.GThus, no relief could have been granted and the earlier orders haveattained finality and operate as a bar for the entertainment of the freshsuit.

29. Coming to the question of lis pendens, Smt. Thopamma hadfiled the suit in 1968 for the creation of charge of maintenance inter alia H

on the properties in question. Explanation to Section 52 of the TP Actmakes it clear that pendency of a suit or proceeding shall be deemed tocommence from the date of the presentation of the plaint. Thus, on thedate of execution of the sale deed on 9.11.1974, the suit filed byThopamma was pending. Thus, the provisions contained in section 52would clearly apply to the case. In Nagubai Ammal & Ors. v. B. ShamaRao & Ors. AIR 1956 SC 593 this Court observed:

“9. On this question, as the plaint in O. S. No. 100 of 1919-20praying for a charge was presented on 6-6-1919, the sale to Dr.Nanjunda Rao subsequent thereto on 30-1-1920 would prima faciefall within the mischief of section 52 of the Transfer of PropertyAct, and would be hit by the purchase by Devamma on 2-8-1928in the execution of the charge decree.

Sri K. S. Krishnaswami Ayyangar, learned counsel for theappellants, did not press before us the contention urged by themin the courts below that when a plaint is presented in forma pauperisthe lis commences only after it is admitted and registered as asuit, which was in this case on 17-6-1920, subsequent to the saleunder Exhibit VI - a contention directly opposed to the plainlanguage of the Explanation to section 52. And he also concededand quite rightly, that when a suit is filed for maintenance andthere is a prayer that it be charged on specified properties, it is asuit in which right to immovable property is directly in question,and the lis commences on the date of the plaint and not on thedate of the decree, which creates the charge.

But he contends that the decision of the courts below that thesale deed dated 30-1-1920 is hit by section 52 is bad on the followingthree grounds : (1) The question of lis pendens was not raised inthe pleadings, and is not open to the plaintiff. (2) The suit formaintenance, O. S. No. 100 of 1919-20 and the sale in executionof the decree passed therein are all collusive, and section 52 hasaccordingly no application. (3) The purchase by Devamma inexecution of the decree in O. S. No. 100 of 1919-20 on 2-8-1928is void and inoperative, as the Official Receiver in whom the estateof Keshavananda had vested on 19-2-1926 was not a party to thesale proceedings. These contentions must now be considered.”

(emphasis is ours)

ABC

DE

F

G

H

474SUPREME COURT REPORTS

A

30. About lis pendens, this Court has held that concession wasrightly made, thereafter laid down the legal proposition. The sale wasclearly subject to the provisions contained in section 52 of the TP Act.

31. On behalf of the respondents, reliance has been placed on theprovisions of section 39 of the TP Act which deals with transfer whereBa third person is entitled to maintenance. It provides if such property istransferred the right may be enforced against the transferee who hasnotice thereof or if the transfer is gratuitous but not against a transfereefor consideration and without notice of the right. Section 39 clearly makesout that charge of maintenance can be enforced against the immovableproperty held by a transferee. In the instant case, the transferee was notCput in possession of the property is apparent from the plaint and possessionof defendant No.1 continued. The sale also does not appear to be bonafide. It was clear with the intent to defeat the claim of the wife formaintenance that is why possession had not been handed over. Thecase of the plaintiff that though sale deed was executed in 1974, defendantDNo.1 again took forcible possession in 1976, is not worthy of acceptance.Apart from that it is not so pleaded in the application under Order XXIRule 90 that he was not aware of the pendency of the suit at the time ofexecution of the sale deed on 9.11.1974. He was a close friend ofdefendant No.1 and was obviously aware of the factum of litigationpending since 1968. Thus, he could not be said to be a bona fide purchaserEat all. Apart from that, the application under Order XXI Rule 90 readwith section 47 CPC containing the said plea stood dismissed.

32. Reliance has also been placed on the provisions contained insection 100 of TP Act which cannot be said to be applicable. Section100 provides that property of one person by operation of law is made theFsecurity of money for payment to another. Latter person is said to havea charge on the property. However, no charge shall be in the hands towhom such property has been transferred for consideration and withoutnotice. As already held, N.K.Giriraja Shetty could not be said to be abona fide purchaser. Besides that, it was clearly subject to the provisionsGcontained in section 52 of the TP Act. Apart from that the objectionunder Order XXI Rule 90 stood dismissed. Thus, he was aware of theauction sale and its confirmation which he ought to have questioned.

33. Reliance has also been placed on section 27 of the Act so asto contend that maintenance under the Act shall not be a charge on the H

estate of the deceased or any portion thereof unless that has been createdby the will of the deceased or by the decree of the court by an agreementbetween the defendant and the owner of the estate or any portionotherwise. It is not the case of creation of charge on the estate of thedeceased. Thus, the provision is not applicable. Section 27 is extractedhereunder:

“27. Maintenance when to be a charge.—A dependant’s claimfor maintenance under this Act shall not be a charge on the estateof the deceased or any portion thereof, unless one has been createdby the will of the deceased, by a decree of court, by agreementbetween the dependant and the owner of the estate or portion, orotherwise.”

34. Section 28 of the Act has been relied on, it provides that wherea dependant has a right to receive maintenance out of an estate andsuch estate or any part is transferred, right to receive maintenance maybe enforced against a transferee. However, such transferee should notbe a bona fide transferee for consideration and without notice and itcannot be enforced against the transferee for consideration without notice.The provision is of no help in view of findings recorded.

35. Reliance has been placed on Sadhu Singh v. Gurdwara SahibNarike & Ors. (2006) 8 SCC 75 in which this Court has laid down thatprovision of section 39 of the TP Act is akin to the provisions containedin section 28 of the Act. However, no sustenance can be drawn fromthe aforesaid decision in the facts of the present case.

36. It was also contended that the court sale was mechanicallymade and confirmed without speaking order and without compliancewith the mandatory provisions of Order XXI Rule 66. No such groundhas been taken in the plaint as such and in the absence of evidence, itcannot be examined. Sale and its confirmation itself has not beenquestioned on any ground whatsoever. There is total suppression withrespect to sale and delivery of possession to defendant No.2. The originalplaintiff did not come to the Court with clean hands and was guilty ofsuppressio veri.

37. It was also contended that this Court can suomoto take noticeof the illegalities as held by this Court in Nani Gopal Paul v. T. PrasadSingh & Ors. (1995) 3 SCC 579. It was contended that when non- A

B

C

DE

F

G

H

Acompliance with the mandatory procedure was there, this Court wouldnot remain a mute and helpless spectator and has to undo manifestillegality committed while conducting the court sale fraudulently. Thereis no dispute with the proposition. However, in the instant case, there isno challenge to the auction proceedings on any ground good, bad orotherwise. In the absence of evidence and suppression of facts, it cannotBbe examined.

38. Once the auction has not been questioned and there is a barcreated by Order XXI Rule 92(3), all these questions cannot be agitatedor urged. Plaintiff has not come to the court with clean hands as such hecould not be said to be entitled to any relief on the grounds so urged.C

39. Reliance has also been placed on the decision of this Court inLal Chand v. VIIIth Addl. District Judge & Ors. (1997) 4 SCC 356contending that auction sale on 5.10.1977 was irregular and void abinitio, smacking of collusion and fraud between husband and wife. Thoughthe interim order of the Court filed in the appeal has also been reliedDupon due to its non-compliance of deposit of Rs.5,000/-, the propertycould have been sold in the auction. The sale could not be said to befraudulent, collusive or ab initio void. Being a purchaser lis pendens, itwas not necessary to issue any notice and N.K.Giriraja Shetty was awareof the suit and the charge and of sale, he filed objections under OrderEXXI Rule 90 CPC and failed to prosecute the same.In Lal Chand (supra)this Court has laid down that the provisions of Order XXI Rule 72 aremandatory and no decree-holder has any right to bid in the auction withoutpermission of the court. However, in the instant case permission hadbeen granted and set off against the decretal amount of maintenancewas made in the auction. The amount of Rs.11,600 was due which wasFa huge amount at the relevant time. It was not the case set up that thesale was not notified in accordance with law as per the provisionscontained in Order XXI Rules 66 and 67 CPC.

40. Reliance has also been placed on section 18 of the EvidenceAct. In the instant case, there is no admission after parting with theGinterest made in the execution proceedings inter se husband and wife.The auction was held by the court in accordance with law. It was notthe case set up that the decree passed in the maintenance suit wasbased upon fraud or a collusive one. Nor was such a case so set up withrespect to the auction of the properties in the execution of the decree.

H

On the contrary, the husband had preferred an appeal against thejudgment and decree passed in the maintenance case, which wasdismissed on merits. Section 18 of the Evidence Act states :

“18. Admission by party to proceeding or his agent.—Statementsmade by a party to the proceeding, or by an agent to any suchparty, whom the Court regards, under the circumstances of thecase, as expressly or impliedly authorized by him to make them,are admissions.

by suitor in representative character.—Statements made byparties to suits, suing or sued in a representative character, arenot admissions, unless they were made while the party makingthem held that character.

Statements made by—

(1) party interested in subject-matter..—persons who have anyproprietary or pecuniary interest in the subject-matter of theproceeding, and who make the statement in their character ofpersons so interested, or

(2) person from whom interest derived..—persons from whomthe parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of theinterest of the persons making the statements.”

Thus, after parting with the interest, no admission with respect tothe interest which has been parted away is admissible, the provision isnot attracted in the fact-situation of the instant case. The so-calledsettlement entered into between the husband and wife on 5.8.1978 hasnot been pressed into service by either and has been disowned by thehusband and wife both. They set up a case that no such settlement hadbeen entered into nor any claim had been made by them on the basisthereof. Had that been the case, the provisions of section 18 of theEvidence Act would have been attracted.

41. Reliance has also been placed on the decision of this Court inV.Swarajyalaxmi & Ors. v. Authorised Officer, Land Reforms, AIR2003 SC 2347 to raise the ground that on the date of the court saledefendant No.1 was not having any saleable interest in the property.

A

B

C

D

E

F

G

H

AThus the sale itself was void and vitiated. The decision is not attractedas there was a charge on the property and purchase was made duringlis pendens and was subject to the provisions contained in section 52.The transaction could not be said to be of bona fide purchase andpendency of the suit without notice. Apart from that objection filedregarding auction has been dismissed and auction has not been questionedBin the suit. Thus, the plea set up has no legs to stand in the factual matrixof the case.

42. It was also contended on behalf of the respondent that claimwas made by defendant No.1 under the Land Reforms Act to be atenant of N.K.Giriraja Shetty. The false claim that has been set up doesCnot carry the cause of the plaintiff as the auction was already held in1977 and stood confirmed in 1979. Further, by the filing of thecounterclaim by defendant No.1 and its abatement is not going to serveany purpose of the plaintiff as plaintiff has to succeed on the strength ofhis own title in the case to recover possession. Merely because defendant DNo.1 filed a counterclaim that conveyance was nominal and fictitiousand it was a transaction of loan, the dismissal of the same does not carrythe case of the plaintiff any further. As the property was subject to courtauction that was not questioned by him. Thus, he has lost the right, titleand interest in the property, if any.

E43. Resultantly, we find the judgment and decree passed by thetrial court to be appropriate. It has been illegally set aside by the firstappellate court. The High Court has also erred in dismissing the secondappeal on the impermissible grounds. Thus, the judgment and decreepassed by the first appellate court, as affirmed by the High Court, deservesto be and are hereby set aside, and the suit of the plaintiff is ordered toFbe dismissed. The judgment and decree passed by the trial court arerestored. The appeal is allowed in these terms. In the facts andcircumstances of the case, parties to bear their respective costs, asincurred.

GDevika Gujral

Appeal allowed.

H