Andhra Pradesh High Court - Amravati
M K Kumari, Hyderabad 2 Others vs Deveneni Satyanarayana, Krishna Dist 5 ... on 13 August, 2024
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APHC010903272016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
TUESDAY, THE THIRTEENTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
APPEAL SUIT NO: 16/2016
Between:
M K Kumari, Hyderabad & 2 Others and Others ...APPELLANT(S)
AND
Deveneni Satyanarayana Krishna Dist 5 Others and ...RESPONDENT(S)
Others
Counsel for the Appellant(S):
1. SAI GANGADHAR CHAMARTY
Counsel for the Respondent(S):
1. MARRI VENKATA RAMANA
2. K LAKSHMAN
The Court made the following JUDGMENT:
1. Under Section 96 of the Code of the Civil Procedure, 1908 (for short,
'C.P.C.'), the Appeal is filed by the Appellants/Petitioners/J.Drs
Appellants/Petitioners/J.Drs 2 to 4
challenging the Decree and Order, dated 18.09.2015 in E.A.No.21
No.21 of 2014 in
E.A.No.1084 of 2012 in E.P.No.90 of 2007 in O.S.No.405 of 2006,
2006 passed
by the learned II Additional Senior Civil Judge, Vijayawada (for short, 'the
Execution Court').
2. Appellants are the Petitioners
Petitioners/J.Drs 2 to 4, who filed the Petition in
E.A.No.21 of 2014, E.A. No.1084 of 2012, E.P. No.90 of 2007, and O.S.
2
No.405 of 2006 seeking to set aside the auction proceedings dated
05.06.2012 and confirm the sale.
3. Referring to the parties as arrayed in E.A.No.21 of 2014 is expedient to
mitigate potential confusion and better comprehend the case.
4. The brief facts of the Petitioners' case are summarized as follows:
The auction conducted on 05.06.2012 in the main
Execution Petition is challenged as invalid due to procedural
irregularities. The auction date was initially announced but was
postponed thrice before being ultimately conducted on
05.06.2012. Additionally, following the death of the original
auction purchaser, his legal representatives filed an implead
petition, listing their names therein. This Petition was filed
without prejudice to their rights, asserting that, given the
original auction purchaser's demise, the alleged L.R.s. Should
have been duly recognized and included as parties to the
proceedings.
5. In the counter, the 1st Respondent/D. He has refuted the allegations put
forth by the Petitioners, asserting that, following the death of the auction
purchaser, Respondents 2 to 4 were impleaded in the Execution Petition
(E.P.) proceedings, as per E.A. No.1084 of 2012. The 1 st Respondent
asserts that the sale conducted by the Hon'ble Court was held in accordance
with legal provisions; the Petitioners have filed the Petition solely with the
intent to delay the proceedings; there are neither sufficient nor reasonable
grounds to invalidate the auction proceedings or the confirmation of the sale,
as sought by the Petitioners, and therefore requests that the Petition be
dismissed with exemplary costs.
6. Based on the above pleadings, the Execution Court framed the
following point for consideration:
Whether the Petitioner is entitled to the relief as prayed for?
3
7. After completing the arguments on both sides, the Execution Court
dismissed the Petition.
8. Sri Sai Gangadhar Chamarty learned Counsel for the Petitioners/J.Drs
2 to 4 contend that the Execution Court erred in not assessing the
Petitioners' case correctly and in light of established legal principles; the
auction was conducted in contravention of the mandatory provisions of
Order XXI of C.P.C., and that the confirmation of the auction posthumously,
following the death of the auction purchaser, is legally invalid. The Counsel
further contends that the auction date was inaccurately stated in the auction
sale notice and that the auction proceeded with issuing a sale proclamation
after being adjourned from the original date. The learned Counsel also
contends that the Execution Court failed to adhere to the mandatory
procedures prescribed under Rules 67 and 68 of Order XXI of the C.P.C.
Moreover, it is claimed that the Execution Court incorrectly allowed the
Respondents to be recorded as legal representatives (L.R.s) of the
deceased auction purchaser and did not address the issues raised by the
Petitioners in their application. Consequently, the Order of the Execution
Court is alleged to be fundamentally flawed, with its reasoning being
erroneous, unsound, and unsustainable, thereby invalidating the preliminary
Decree and the Order in its entirety.
9. Per contra, Sri Marri Venkata Ramana, learned Counsel representing
the Respondents, argued that the Execution Court appreciated the case
facts and reached a correct conclusion. The reasons given by the Execution
Court do not require any interference.
10. In light of the pleadings and the findings recorded by the Execution
Court, the following points are to be determined:
(1) Is the Petition maintainable under Section 47, Order XXI,
Rule 101, and Section 151 of the Civil Procedure Code
(C.P.C.)?
(2) Does the impugned Order passed by the Execution Court
warrant any interference?
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POINTS NO.1 & 2:
11. Learned Counsel for the Appellants/Petitioners/J.Drs contends that a
bare perusal of section 47 of C.P.C. shows that the executing Court can
decide all questions between the parties. But these questions are limited to
the "execution of the decree". He relied on the decision in Pradeep Mehra Vs
to support their contention. Harijivan J. Jethwa (Since Deceased thr.
L.Rs.) and Ors1. He further contends that the question involved in this Petition
is with regard to the execution of the Decree. The trial Court failed to see that
the auction was conducted contrary to the mandatory provision of Order 21 of
C.P.C., and the trial Court failed to see that the auction's confirmation after the
auction purchaser's death was void.
12. The learned Counsel for the Respondents contends that section 47 of
CP.C does not deal with material irregularity or fraud in conducting the sale,
and that aspect is to be dealt with under order 21 rule 90 of C.P.C. only. In this
regard, he relied on the decision in Tamma Venkata Pardhasaradhi Vs.
Tamma Ramachandra Rao and Ors.2, wherein the composite High Court of
Andhra Pradesh held that:
8............................... These allegations only concern the illegalities
and irregularities in publishing and conducting the sale. Thus, the
application comes directly within the scope of Rule 90 of Order XXI, C. P.
C. Indeed, all questions between the parties to the suit relating to the
execution, discharge or satisfaction of the Decree are generally covered
by Section 47, C. P. C. But that is only a general provision. However, the
Code makes a specific provision and lays out a definite procedure for
setting aside sales of Immovable properties on the grounds of irregularity
or fraud in publishing or conducting them. When there is a specific
provision in the law, it is that provision that should be invoked and
applied, not the general provision. This Rule is well established. The
appellant had invoked Order XXI, Rule 90, C. P. C., also as the provision
under which he was applying. The circumstances of his case are,
therefore, logical to test his application from the perspective of the
specific provision of Rule 90 and not from that of the general provision of
Section 47, C. P. C. Otherwise, Rules 89 and 90 of Order XXI, C. P. C.,
1
MANU/SC/1189/2023
2
MANU/AP/0053/1972
5
would be rendered nugatory and otiose. That could never be the
intention of the makers of the Code.
9. When a person feels aggrieved by a sale and impugns it on grounds
stated in Rule 90, he is bound by the requirements and implications of
that Rule. To find out whether a particular application comes under Rule
90 or Section 47, C. P.C., the substance of the application must be
considered. And if that substance is that there were irregularities or
illegalities in publishing or conducting the sale, then the application must
be treated as one under Rule 90. If, on the other hand, the grounds
alleged are either anterior or after the publishing or conducting of the
sale, it is outside the purview of Rule 90 and will come within the ambit of
Section 47, C. P. C. This distinction between the two provisions has also
been pointed out by the Madras High Court in Seshagiri Ayyar v.
Valambal Ammal 3 , and this Court in Satyanarayanamurty v.
Bhavanarayana MANU/AP/0174/1956 : AIR 1957 AP 185 (FB). Since the
appellant's Petition alleges irregularities and illegalities in publishing and
conducting the sale, it comes within the scope of Order XXI, Rule 90, C.
P. C., and must, therefore, satisfy all its requirements.
13. Learned Counsel for the Respondents further relied on the decision in
Amalakanti Lakshmi Saroja Vs. Chaluvadhi Raghavamma and Ors.4, the
composite High Court of Andhra Pradesh has placed reliance on various
decisions here under:
11. In V. Subbarmma v. Koniki Chengama Naidu MANU/AP/0448/1998: 1998
(3) ALT 497, considered as to whether Section 47 got no application when
the sale of a property was confirmed, and corresponding sale certificate was
issued in executing Decree, and the only recourse open was to file a petition
under Order XXI Rule 91 C.P.C. for setting aside the sale. The High Court
placed reliance on the following decisions in that context:
12. While examining the distinction between Section 47 C.P.C. and Order
XXI Rule 90 C.P.C. and relevant factors in Seshagiri Aiyar v. Valambal
Ammal A.I.R. 1952 Madras 377, it was held:
If a party impeaches a sale on grounds which attract the provisions
of Order 21 Rule 90, he cannot escape from the period of limitation
provided by Article 166, Limitation Act, by framing his application as
one under Section 47. The substance of the application must be
considered to determine whether the application falls under Section
47 or Order 21, Rule 90 C.P.C. If the grounds alleged do not relate
to matters in publishing or conducting the sale but are anterior or
3
MANU/TN/0189/1952: AIR1952Mad377
4
MANU/AP/0292/2013
6
after the sale, the application is outside the purview of Order 21,
Rule 90.
..........
14. In Satyanarayanamurthy v. Bhavanarayana MANU/AP/0174/1956: A.I.R.
1957 AP 185, while considering the scope and ambit of Order XXI Rule 90, it
was held:
Even if an attachment is a necessity preliminary to a sale, the
judgment-debtor, if he receives a notice under Rule 66(2), has an
opportunity to raise the question of the absence of attachment. If, on
the other hand, there is no attachment and no notice under Rule 66,
then he may very well complain of the absence of notice under Rule 66
and, on proof of substantial injury, may get the relief provided by Rule
90. Therefore, the question of lack of attachment by itself is immaterial
under Section 47 because it does not make the sale void and under
Rule 90 because it cannot, in the contemplation of the Code, by itself
occasion substantial injury. In the result, unless the matters alleged in
an application for setting aside a sale are such that they would render
the sale void (in which case no question of substantial injury could arise
as the application falls under Section 47), it must come under Order XXI
Rule 90. It can succeed only on proof of material violation of Rule 65,
etc., followed by proof of consequential substantial injury to the
applicant. Non-service of notice under Order 21 Rule 66(2) is an
irregularity in publishing and conducting the sale.
And further held at para No.19 as follows:
19. Pertinently, one way the Petitioner herein is claiming shelter is under
Section 47, and the other way he is claiming shelter is under Order XXI Rule
90. With regards to the issue raised, the question of irregularity or illegality in
publishing and conducting the sale of the property in question clearly comes
within the purview of Order XXI Rule 90, whereas it does not come within the
purview of the other provision. When Section 47 speaks of the execution of a
decree, Order XXI Rule 90 certainly deals with a different aspect as it deals
with setting aside the sale of a property on the grounds of illegality or
irregularity in conducting the sale. Therefore, the question on hand is to be
decided only on the application of Order XXI Rule 90.
14. Learned Counsel for the Respondents relied on the decision in Vepa
Satyanarayanaimivlhy Vs. Chekka Bhavanarayana and Ors5, wherein the
composite High Court of Andhra Pradesh held that:
21. It is true that these cases do not deal with the absence of notice
provided under Rule 66, Sub-rule (2). But, in the latest Bench decision of
MANU/AP/0174/1956
the Madras' High Court dealing with the scope of Order 21, Rule 90, in
Vasudeva Kavu Patten v. Mani Naicka. I.L.R. (1953) Mad 1143 at p. 1150:
A.I.R. 1953 Mad 863 at p. 687) (P) Venkatarama Ayyar J., after a detailed
reference to the relevant authorities, enunciated the following proposition,
which, with respect, I accept subject to the qualification I shall presently
mention.
The principle to be deducted from these authorities is that breaches of
the provisions of the Code of Civil Procedure relating to execution against
immovable properties commencing from their attachment down to their
sale should all be dealt with under Order 21, Rule 90, and not otherwise
and that the Order of confirmation under Order 21, Rule 92, should give
the final quietus to all objections which could be raised under Order 21,
Rule 90.
24. But, it appears to me, with the utmost respect to the learned Judges,
the decision seems to go far beyond the terms of It, 80. The terms of Rule
90 were not referred to by them. A sale cannot be said to commence until
an order for sale is made under Rule 64 of Order 21. Meanwhile, the word
"publishing" in R. 90 refers to the publication mentioned in It. 67, the word
"conducting" refers back to the words "shall be conducted" in Rule 65. It
seems that the words "conduct of sale" cannot be held to cover the
anterior process of attachment. (See Ram Chhaibar Misr v. Bechu Bhagat,
I.L.R. 7 All 641 at p. G45 (R). I find myself, therefore, in agreement with
the view expressed by Satyanarayana Rao J. in 'Seshagiri Aiyar v.
Valambal Ammal, MANU/TN/0189/1952MANU/TN/0189/1952: A.I.R. 1952
Mad 377 (S), that.
Under the Code, the proceedings for sale 'start with an order for sale
made by the Court executing the Decree under Rule 64.
So, before an order for sale is made, there can be no irregularity in the
publication or conduct of the sale within the meaning of Rule 90. Only
breaches of rules that follow Rule 64 can be characterized as irregularities
appertaining to the publication or conduct of the sale.
15. Learned Counsel for the Respondents relied on the decision in
Seshagiri Aiyar Vs. Valambal Ammal and Ors. 6 , wherein the High Court of
Madras held that:
9. It is difficult to support the judgment of the learned Judge and to uphold
the grounds on which he set the sale aside. If a party impeaches a sale on
grounds which attract the provisions of Order XXI, Rule 90. Civil P. C. he
cannot escape from the period of limitation provided by Article 166,
Limitation Act by framing his application as one under Section 47, Civil P.
C. The substance of the application must be considered in order to
MANU/TN/0189/1952
determine whether the application is one which falls under S 47 or Order
21, Rule 90, Civil P. C. If the grounds alleged do not relate to matters in
publishing or conducting the sale but are anterior or subsequent to the
sale no doubt, in that event, the application is outside the purview of Order
21, Rule 90. ...............................
16. The legal principles delineated in the decisions as mentioned above
unequivocally clarify that Section 47 of the C.P.C. does not encompass issues
related to material irregularity or fraud in the execution of a sale; such issues
fall squarely within the purview of Order XXI, Rule 90 of the C.P.C.
Conversely, if the grounds in question pertain to matters occurring either prior
to or following the sale, rather than concerning its publication or conduct, then
the application would be governed by Section 47 of the C.P.C., not Order XXI,
Rule 90. To ascertain whether a given application is governed by Order XXI,
Rule 90 or Section 47, a thorough examination of the substance of the
application is requisite. In adherence to these established legal principles, this
Court has meticulously scrutinized the substance of the Appeal. The
Appellants/Petitioners have articulated specific irregularities or illegalities in
the publication or conduct of the sale, as detailed below:
(i) The auction date was wrongly mentioned in the auction sale
notice.
(ii) The auction was conducted without issuing the sale proclamation
after adjournment from the original date.
(iii) The Execution Court failed to comply with the mandatory
provisions under Rules 67 and 68 of Order 21 C.P.C.
The alleged irregularities or illegalities in question pertain specifically to
the provisions of Rule 90 rather than the general provisions of Section 47 of
the C.P.C. Consequently; this Court finds merit in the argument presented by
the Counsel for the Respondents.
17. The learned Counsel for the Respondents asserts that any application
to set aside a sale in execution of a decree, including one filed by the J.Dr,
must be submitted within sixty days from the date of the sale, in accordance
with Article 127 of the Schedule to the Limitation Act.
18. This Court firmly believes that any challenge to the alleged irregularities
or illegalities should have been pursued per Order 21, Rule 90 of the Civil
Procedure Code (C.P.C.) and within the specified period of limitation. Instead,
the Petitioners have filed this Petition without first seeking recourse under
Order XXI, Rule 90 of C.P.C. The Civil Procedure Code delineates a precise
procedural mechanism for contesting sales of immovable property based on
claims of irregularities or fraudulent conduct in the sale process, mandating
the invocation of Order 21, Rule 90, rather than Section 47 of the C.P.C. The
issues raised pertain directly to alleged irregularities or illegalities in the
conduct of the property sale, which fall squarely within the purview of Order
XII Rule 90 of C.P.C. This provision explicitly stipulates a limitation period for
applying. In an attempt to bypass this procedural limitation, the Petitioners
have instead invoked Section 47 of the C.P.C. This Court observes that if the
Petitioners/J.Drs seek to contest the sale on the grounds that it falls within the
ambit of Order XXI, Rule 90 of C.P.C.; they must comply with the limitation
period prescribed under Article 127 of the Limitation Act, as rightly asserted by
the Respondents' Counsel. The record reflects that the sale occurred on
05.06.2012 and was confirmed by the Court on 06.08.2012. The Petitioners'
application, filed on 23.01.2014, was submitted beyond the stipulated
limitation period. Accordingly, the challenge to the sale predicated on alleged
irregularities is deemed untenable.
19. As seen from the record, according to the legal representatives of the
auction purchaser, the latter expired intestate on 26.06.2012. Consequently,
they moved an application requesting the Court to issue a sale certificate in
favour of one of the family members, with no objection reported by the other
family members. The Counsel for the Appellants/J.Drs contends that the
confirmation of the auction, rendered subsequent to the death of the auction
purchaser, is legally impermissible.
20. In this regard, learned Counsel for the Respondents relied on the
decision in Shivadas Subrao and Co. and Ors. vs. V.D. Divekar and Ors.7 ,
wherein a question came up for consideration in the revision petition, when a
sale in execution has become absolute, whether the Court can grant a
certificate under Order XXI Rule 94 of the Code of Civil Procedure to the
representative of the deceased purchaser, the High Court of Karnataka by
relying on several precedents held that:
13.............................. it is competent for a court under the provisions
of Rule 94 of Order XXI of the Code of Civil Procedure to issue a
certificate to the legal representative of the deceased partner of the firm--
in this case to Malati Bai, the widow of the deceased partner of the firm
R. G. Parekh.
This Court fully concurs with the observations the High Court of
Karnataka articulated. In light of this concordance, it is evident that the
objections advanced by the Petitioners/J.Drs are fundamentally unsustainable.
The Court, therefore, deems the objections mentioned above devoid of merit
and concludes that they do not warrant further consideration.
21. The learned Counsel representing the Appellants/J.Drs asserts that the
trial Court rendered a dismissal of the Petition devoid of any elucidation or
rationale. This Court maintains that in instances where factual matters are
unequivocally settled, the Appellate Court is fully authorized to consider the
undisputed facts in adjudicating the arguments proffered by the parties. Given
that the matter pertains to a legal question and both parties have failed to
adequately present their case to the Execution Court, it does not preclude this
Court from evaluating the legal dimensions and reaching a determinative
conclusion. Consequently, for the reasons articulated above, this Court finds
no justifiable cause to interfere with the Order passed by the Execution Court.
MANU/KA/0117/1969
22. Accordingly, the Points are answered in favour of the Respondents.
Given the preceding discussion, the view taken by the Execution Court does
not call for any interference, and this Appeal fails.
23. As a result, the Appeal is hereby dismissed without costs by
confirming the Decree and Order in E.A.No.21 of 2014 in E.A.No.1084 of 2012
in E.P.No.90 of 2007 in O.S. No.405 of 2006, dated 18.09.2015, passed by
the learned II Additional Senior Civil Judge, Vijayawada. The impugned
Decree and Order passed by the Execution Court have been upheld.
Miscellaneous petitions pending, if any, in this Appeal, shall stand closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 13.08.2024
SAK
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
APPEAL SUIT NO.16 OF 2016
Date: 13.08.2024
SAK
