[Cites 10, Cited by 0]
Karnataka High Court
Davinder Singh vs Smart Asset Services India Pvt Ltd on 21 February, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.6830 OF 2025 (GM - CPC)
C/W
WRIT PETITION No.6807 OF 2025 (GM - CPC)
WRIT PETITION No.9793 OF 2025 (GM - CPC)
WRIT PETITION No.9805 OF 2025 (GM - CPC)
IN WRIT PETITION No.6830 OF 2025
BETWEEN:
1. TRISHUL DEVELOPERS
A REGISTERED PARTNERSHIP FIRM,
HAVING ITS OFFICE AT MITTAL TOWERS,
NO.109, 'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING PARTNER,
MR. NIRAJ MITTAL.
2. MR. NIRAJ MITTAL
S/O MR.O.P.MITTAL,
AGED ABOUT 52 YEARS,
MANAGING PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS, NO.109,
2
'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
3. MR. O. P. MITTAL
S/O LATE SHRI MALIRAM MITTAL,
AGED ABOUT 76 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS, NO.109,
'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
4. MRS. UMA MITTAL
W/O MR. O. P. MITTAL
AGED ABOUT 73 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS, NO.109,
'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
5. MRS. JYOTI MITTAL
W/O MR. NIRAJ MITTAL
AGED ABOUT 48 YEARS,
PARTNER, TRISHUL DEVELOPERS,
MITTAL TOWERS, NO.109,
'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
... PETITIONERS
(BY SRI S.S.NAGANAND, SR.ADVOCATE A/W
SMT.RUPALI K.TRIVEDI, ADVOCATE)
3
AND:
SMART ASSET SERVICES INDIA PVT. LTD.,
A COMPANY REGISTERED UNDER COMPANIES ACT, 1956
HAVING ITS OFFICE AT NO.151, 9TH MAIN,
6TH SECTOR, HSR LAYOUT,
BENGALURU - 560 102
REPRESENTED BY ITS
DIRECTOR
MS. DIANA NINU MATHEW.
... RESPONDENT
(BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR
SRI C.N.MAHADESHWARAN, ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO (i) SET ASIDE/ QUASH THE
ORDER DATED 28.02.2025 PASSED BY THE LXXXVIII ADDL. CITY
CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT (CCH-89),
BANGALORE IN COMMERCIAL EXECUTION NO. 1366/2019
(ANNEXURE-A); (ii) DISMISS THE INTERLOCUTORY APPLICATION
(I.A. NO.69/2025) DATED 01.02.2025 FILED BY THE RESPONDENT
IN LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE,
COMMERCIAL COURT (CCH-89), BANGALORE IN COMMERCIAL
EXECUTION NO.1366/2019 (ANNEXURE-J); (iii) PERMIT THE
PETITIONER TO SELL 24 RESIDENTIAL APARTMENT UNITS IN
ACCORDANCE TO I.A.NO.69/2025 AND DEPOSIT THE SALE
PROCEEDS BEFORE THIS HON'BLE COURT (IV) GRANT COST OF
THESE PROCEEDINGS AND ETC.,
IN WRIT PETITION No.6807 OF 2025
BETWEEN:
1. TRISHUL DEVELOPERS
A REGISTERED PARTNERSHIP FIRM,
4
HAVING ITS OFFICE AT MITTAL TOWERS,
NO.109, 'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING PARTNER,
MR. NIRAJ MITTAL.
2. MR.NIRAJ MITTAL
S/O MR. O. P. MITTAL,
AGED ABOUT 52 YEARS,
MANAGING PARTNER,
TRISHUL DEVELOPERS
MITTAL TOWERS, NO.109,
'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
3. MR. O. P. MITTAL
S/O LATE SHRI MALIRAM MITTAL,
AGED ABOUT 76 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS, NO.109,
'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
4. MRS. UMA MITTAL
WIFE OF MR. O. P. MITTAL
AGED ABOUT 73 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS, NO.109,
'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
5
5. MRS. JYOTI MITTAL
W/O MR. NIRAJ MITTAL
AGED ABOUT 48 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS, NO.109,
'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
... PETITIONERS
(BY SRI S.S.NAGANAND, SR.ADVOCATE A/W
SMT.RUPALI K.TRIVEDI, ADVOCATE)
AND:
SMART ASSET SERVICES INDIA PVT. LTD.,
A COMPANY REGISTERED UNDER COMPANIES ACT, 1956
HAVING ITS OFFICE AT
NO.151, 9TH MAIN,
6TH SECTOR, HSR LAYOUT,
BENGALURU - 560 102
REPRESENTED BY ITS DIRECTOR
MS. DIANA NINU MATHEW
... RESPONDENT
(BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR
SRI C.N.MAHADESHWARAN, ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO (i) SET ASIDE/ QUASH THE
ORDER DATED 12.11.2024 PASSED BY THE LXXXVIII ADDIL. CITY
CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT (CCH-89),
BANGALORE IN COMMERCIAL EXECUTION NO. 1366/2019
(ANNEXURE-A); (II) DISMISS THE INTERLOCUTORY APPLICATION
(I.A. NO.5/2024) DATED 10.06.2024 FILED BY THE RESPONDENTS
IN LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE,
COMMERCIAL COURT (CCH-89), BANGALORE IN COMMERCIAL
6
EXECUTION NO.1366/2019 (ANNEXURE-D); AND III) GRANT COST
OF THESE PROCEEDINGS AND ETC.,
IN WRIT PETITION No.9793 OF 2025
BETWEEN:
1. SUDHIRCHANDRA LAKHAMSHI SHAH
S/O MR. LAKHAMSHI SHAH,
AGED ABOUT 74 YEARS,
R/A NO. 51, UDYOG BHAVAN,
SONAWALA LANE, GOREGAON EAST
MUMBAI - 400 063
PRESENTLY RESIDING AT:
APARTMENT 8, PARKHILL, ESHER,
SURREY, KT10 9NP,
UNITED KINGDOM.
2. JOTSHNA SUDHIRCHANDRA SHAH
W/O MR. SUDHIRCHANDRA SHAH,
AGED ABOUT 73 YEARS,
R/A NO. 51, UDYOG BHAVAN,
SONAWALA LANE, GOREGAON EAST
MUMBAI - 400 063
PRESENTLY RESIDING AT:
APARTMENT 8, PARKHILL, ESHER,
SURREY, KT10 9NP,
UNITED KINGDOM.
3. DEEP SHAH
S/O MR. SUDHIRCHANDRA SHAH,
AGED ABOUT 45 YEARS,
R/A NO. 51, UDYOG BHAVAN,
SONAWALA LANE,
GOREGAON EAST
7
MUMBAI - 400 063.
PRESENTLY RESIDING AT:
"LITTLE SQUIRRELS", 3 ALBURY ROAD,
WALTON UPON THAMES,
HERSHAM, SUREEY KT12 5DY,
UNITED KINGDOM.
... PETITIONERS
(BY SRI ADITYA NARAYAN, ADVOCATE)
AND:
1. SMART ASSEST SERVICES INDIA PVT. LTD.,
A REGISTERED COMPANY UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT:
8TH FLOOR, DELTA BLOCK, SIGMA TECH PARK,
RAMAGONDANAHALLI, WHITEFIELD,
BENGALURU - 560 066
AND ALSO HAVING ITS OFFICE AT
NO.151, 9TH MAIN, 6TH SECTOR,
HSR LAYOUT, BENGALURU - 560 102
REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
MANAGING DIRECTOR
MS. DIANA NINU MATHEW.
2. TRISHUL DEVELOPERS
A REGISTERED PARTNERSHIP FIRM,
HAVING ITS OFFICE AT:
MITTAL TOWERS, NO.109, 'B' WING,
1ST FLOOR, NO.6, M.G. ROAD,
BENGALURU - 560 001
REPRESENTED BY ITS PARTNER,
8
MR. NIRAJ MITTAL.
3. MR. NIRAJ MITTAL
S/O MR. O.P. MITTAL,
AGED ABOUT 52 YEARS,
MANAGING PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS,
NO.109, 'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
4. MR. O. P. MITTAL
S/O LATE SHRI. MALIRAM MITTAL,
AGED ABOUT 76 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS,
NO.109, 'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
5. MS. UMA MITTAL
W/O MR. O.P. MITTAL,
AGED ABOUT 73 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS,
NO.109, 'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
6. MS. JYOTI MITTAL
W/O MR. NIRAJ MITTAL,
AGED ABOUT 48 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS,
9
NO.109, 'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR
SRI C.N.MAHADESHWARAN, ADVOCATE FOR C/R-1
SRI S.S.NAGANAND, SR.ADVOCATE A/W
SMT.RUPALI K.TRIVEDI, ADVOCATE FOR R-2 TO R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO (I) QUASH THE ORDER
DATED 28.02.2025 (ANNEXURE A) ON I.A NO.69, PASSED BY
LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL
COURT (CCH-89), BANGALORE IN COMMERCIAL EXECUTION
NO.1366/2019 IN INSOFAR AS THE APARTMENTS BEARING NO(S).
A 702 AND A 701 IN THE APARTMENT COMPLEX NAMED 'MITTAL
PALMS' BEING DEVELOPED BY RESPONDENT NO.2 AT
SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE, NORTH
TALUK, IS CONCERNED; II) DIRECT THE HON'BLE COMMERCIAL
COURT TO GRANT AN OPPORTUNITY TO THE PETITIONERS TO FILE,
TAKE ON RECORD AND ADJUDICATE THE APPLICATIONS UNDER
ORDER XXI RULE 58 AND XXI RULE 59 FIRST BEFORE OPERATION
OF THE IMPUGNED ORDER PASSED ON I.A. NO.69 FILED BY
RESPONDENT NO. 1 INSOFAR AS THE APARTMENTS BEARING
NO(S). A 702 AND A 701, IN THE APARTMENT COMPLEX NAMED
'MITTAL PALMS' BEING DEVELOPED BY RESPONDENT NO.2 AT
SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE, NORTH
TALUK IS CONCERNED; (III) GRANT CONSEQUENTIAL RELIEFS, TO
WHICH THE PETITIONERS MAY BE ENTITLED; IV) GRANT COST OF
THESE PROCEEDINGS AND ETC.,
IN WRIT PETITION No.9805 OF 2025
BETWEEN:
1. DAVINDER SINGH
S/O MR. SOHAN SINGH,
10
AGED ABOUT 80 YEARS,
R/A HIG 292, 5TH MAIN,
14TH CROSS, RMV 2ND STAGE,
BENGALURU - 560 094.
2. PARKASH KAUR
W/O MR. DAVINDER SINGH,
AGED ABOUT 75 YEARS,
R/A HIG 292, 5TH MAIN,
14TH CROSS, RMV 2ND STAGE,
BENGALURU - 560 094.
3. NITHYA K.,
W/O MR. PRADEEP S.,
AGED ABOUT 41 YEARS,
R/A NO.518, 8TH MAIN,
2ND BLOCK, HMT LAYOUT,
VIDYARANYAPURA,
BENGALURU - 560 013.
4. PRADEEP S.,
S/O MR. SETHURAMAN,
AGED ABOUT 45 YEARS,
R/A 518, 8TH MAIN,
2ND BLOCK, HMT LAYOUT,
VIDYARANYAPURA,
BENGALURU - 560 013.
5. AARTI S. JOSHI
W/O LATE MR. SALIL S. JOSHI,
AGED ABOUT 51 YEARS,
R/A NO. J 704,
ROHAN VASANTHA,
MARATHAHALLI,
BENGALURU - 560 037.
6. VIKRAM SAHGAL
S/O MR. RAVINDER KUMAR SAHGAL,
11
AGED ABOUT 59 YEARS,
R/A NO.11 D, RAHEJA TERRACES,
AGA ABBAS ALI ROAD, ULSOOR,
BENGALURU - 560 042.
7. NEENU SAHGAL
W/O MR. VIKRAM SAHGAL,
AGED ABOUT 57 YEARS,
R/A NO.11 D, RAHEJA TERRACES,
AGA ABBAS ALI ROAD, ULSOOR,
BENGALURU - 560 042.
8. NEETU GUPTA
D/O MR. K.G.PADIA,
AGED ABOUT 47 YEARS,
R/A NO. 3B TOUNNA HOUSE,
NO. 6 HAUDIN ROAD
ULSOOR, SIVAN CHETTY GARDENS
BENGALURU NORTH - 560 042.
9. TANU MEHTA
W/O MR. RAJAT MEHTA,
AGED ABOUT 48 YEARS,
R/A NO. 548, ROAD NO. 86,
PHASE 3, JUBILEE HILLS,
HYDERABAD - 500 033.
10 . DEBASHISH MAITY
S/O MR. AMAR KUMAR MAITY,
AGED ABOUT 43 YEARS,
R/A NO. FATHERS MICHEAL HSG,
SOC, PLOT 7, S. NO.39/1/1,
VISHRANTWADI,
PUNE - 411 015.
11 . SUPARNA GHOSH
W/O MR. DEBASHISH MAITY,
AGED ABOUT 45 YEARS,
12
R/A NO. FATHERS MICHEAL HSG,
SOC, PLOT 7, S. NO.39/1/1,
VISHRANTWADI,
PUNE - 411 015.
12 . M/S. FAMY FINVEST PVT. LTD.
A REGISTERED COMPANY UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT:
802, NARAYAN COMPLEX,
OPP. NAVRANGPURA POST OFFICE,
NAVARANGPUR, AHMEDABAD,
GUJARAT - 380 009
AND ALSO HAVING ITS OFFICE AT:
BRADY HOUSE, 3RD FLOOR, 12-14,
VEER NARIMAN ROAD, FORT,
MUMBAI - 400 001
REPRESENTED BY ITS
AUTHORIZED SIGNATORY, DIRECTOR
MR. MAHESH KUMAR LADHA.
13 . PIYUSH SARAOGI
S/O MR. HARI KISHAN SARAOGI,
AGED ABOUT 37 YEARS,
R/A NO. 14, N S ROAD,
2ND FLOOR, KOLKATA,
WEST BENGAL - 700 001.
14 . SANJAY KRISHNA GOYAL
S/O LATE DAYA KRISHNA GOYAL,
AGED ABOUT 55 YEARS,
R/A NO. D-1086,
NEW FRIENDS COLONY,
NEW DELHI - 110 025.
13
15 . NIDHI KHANNA
W/O RACCHIT KHANNA,
AGED ABOUT 32 YEARS,
R/A NO. 2, LOKHANDAWLA MAIN ROAD,
ANDHERI WEST, MUMBAI - 400 053.
16 . MURALIDHAR Y.,
S/O LATE YADAMA M.,
AGED ABOUT 50 YEARS,
R/A NO. 8-2-703/A, ROAD NO.12,
BANJARA HILLS,
HYDERABAD - 500 034.
17 . SWATI AGARWAL
D/O OMPRAKASH AGARWAL,
AGED ABOUT 32 YEARS,
R/A NO. 16A, JAL DARSHAN BUILDING,
BLOCK 2A, NAPEAN SEA ROAD,
MUMBAI - 400 026.
18 . ANKUSH ARENJA
S/O MUKESH ARENJA,
AGED ABOUT 40 YEARS,
R/A SUNNY BUNGLOW
NO.4, 2ND CROSS LANE,
LOKHANDWALA,
ANDHERI WEST,
MUMBAI - 400 053.
19 . MONICA ARENJA
W/O MUKESH ARENJA,
AGED ABOUT 63 YEARS,
R/A SUNNY BUNGLOW
NO.4, 2ND CROSS LANE,
LOKHANDWALA,
ANDHERI WEST,
MUMBAI - 400 053.
14
20 . NISHA RATHI
W/O BHARAT RATHI,
AGED ABOUT 67 YEARS,
R/A NO.21, KENSIGNTON LAYOUT,
BENGALURU - 560 008.
... PETITIONERS
(BY SRI ADITYA NARAYAN, ADVOCATE)
AND:
1. SMART ASSET SERVICES INDIA PVT. LTD.,
A REGISTERED COMPANY UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
8TH FLOOR, DELTA BLOCK, SIGMA TECH PARK,
RAMAGONDANAHALLI, WHITEFIELD,
BENGALURU - 560 066.
AND ALSO HAVING ITS OFFICE AT
NO.151, 9TH MAIN, 6TH SECTOR,
HSR LAYOUT,
BENGALURU - 560 102
REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
MANAGING DIRECTOR
MS. DIANA NINU MATHEW.
2. TRISHUL DEVELOPERS
A REGISTERED PARTNERSHIP FIRM,
HAVING IT'S OFFICE AT
MITTAL TOWERS,
NO.109, 'B' WING, 1ST FLOOR, NO.6,
M.G. ROAD, BENGALURU - 560 001
REPRESENTED BY ITS PARTNER,
MR. NIRAJ MITTAL.
15
3. MR. NIRAJ MITTAL
S/O MR. O.P. MITTAL,
AGED ABOUT 52 YEARS,
MANAGING PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS,
NO.109, 'B' WING,
1ST FLOOR, NO.6, M.G. ROAD,
BENGALURU - 560 001.
4. MR. O. P. MITTAL
S/O LATE SHRI. MALIRAM MITTAL,
AGED ABOUT 76 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS,
NO.109, 'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
5. MS. UMA MITTAL
W/O MR. O.P. MITTAL,
AGED ABOUT 73 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS,
NO.109, 'B' WING, 1ST FLOOR,
NO.6, M.G. ROAD,
BENGALURU - 560 001.
6. MS. JYOTI MITTAL
W/O MR. NIRAJ MITTAL,
AGED ABOUT 48 YEARS,
PARTNER,
TRISHUL DEVELOPERS,
MITTAL TOWERS,
NO.109, 'B' WING, 1ST FLOOR,
16
NO.6, M.G. ROAD,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR
SRI C.N.MAHADESHWARAN, ADVOCATE FOR C/R-1;
SRI S.S.NAGANAND, SR.ADVOCATE A/W
SMT.RUPALI K.TRIVEDI, ADVOCATE FOR R-2 TO R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO I) QUASH THE ORDER
DATED 28.02.2025 (ANNEXURE A) ON I.A NO.69, PASSED BY
LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL
COURT (CCH-89), BANGALORE IN COMMERCIAL EXECUTION
NO.1366/2019 IN INSOFAR AS THE APARTMENTS BEARING NO. B
404, E 502, G 606, D 402, F 302, F 401, C 402, E 101, A 502, B
602, B 603, C 502, E 304, B 502, F 304, G 203, G 405, G 704, G
705, A 002, D 401, E 204, F 001, A 704, B 501, D 603, E 302, D
001, D 201, E 102, A 201, G 205, G 702, A 202, A 302, F 002, F
604, G 104, G 603, F 402, G 103, G 403 AND 404 IN THE
APARTMENT COMPLEX NAMED 'MITTAL PALMS' BEING DEVELOPED
BY RESPONDENT NO.2 AT SHIVANAHALLI VILLAGE, YELAHANKA
HOBLI, BANGALORE, NORTH TALUK, IS CONCERNED;
(II) DIRECT THE HON'BLE COMMERCIAL COURT TO GRANT AN
OPPORTUNITY TO THE PETITIONERS TO FILE, TAKE ON RECORD
AND ADJUDICATE THE APPLICATIONS UNDER ORDER XXI RULE 58
AND XXI RULE 59 FIRST BEFORE OPERATION OF THE IMPUGNED
ORDER PASSED ON I.A. NO.69 FILED BY RESPONDENT NO.1
INSOFAR AS THE APARTMENTS BEARING NO. B 404, E 502, G 606,
D 402, F 302, F 401, C 402, E 101, A 502, B 602, B 603, C 502, E
304, B 502, F 304, G 203, G 405, G 704, G 705, A 002, D 401, E
204, F 001, A 704, B 501, D 603, E 302, D 001, D 201, E 102, A
201, G 205, G 702, A 202, A 302, F 002, F 604, G 104, G 603, F
402, G 103, G 403 AND 404 IN THE APARTMENT COMPLEX NAMED
'MITTAL PALMS' BEING DEVELOPED BY RESPONDENT NO.2 AT
SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE, NORTH
TALUK IS CONCERNED; (III) GRANT CONSEQUENTIAL RELIEFS, TO
17
WHICH THE PETITIONERS MAY BE ENTITLED (IV) GRANT COST OF
THESE PROCEEDINGS AND ETC.,
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
Writ Petition No.6830 of 2025 is filed challenging an order
passed on I.A.No.69 of 2025 by the executing Court/LXXXVIII
Additional City Civil and Sessions Judge, Commercial Court (CCH-
89), Bangalore allowing the application filed under Order 21 Rule 64
r/w Section 151 of CPC by the respondents for issuance of
proclamation and sale of properties for recovery of fruits of arbitral
award. Writ Petition Nos.6830 and 6807 of 2025 are preferred by
the Developers/judgment debtors. The remaining two writ petitions
Writ Petition Nos.9793 of 2025 and 9805 of 2025 are preferred by
the buyers of apartments in the apartment complex. Therefore, the
issue in the lis relates to issuance of proclamation and sale of
properties for recovery of fruits of arbitral award.
18
2. Heard Sri S.S.Naganand, learned senior counsel along with
Smt Rupali K Trivedi, appearing for petitioners in W.P.Nos.6830 of
2025 and 6807 of 2025 and respondents 2 to 6 in W.P.Nos.9793 of
2025 and 9805 of 2025; Sri Aditya Narayan, learned counsel
appearing for petitioners in W.P.Nos.9793 of 2025 and 9805 of
2025 and Sri Prabhuling K. Navadgi, learned counsel appearing for
the respondent in W.P.Nos.6830 of 2025 and 6807 of 2025 and
respondent No.1 in W.P.Nos.9793 of 2025 and 9805 of 2025.
3. Facts in brief, germane, are as follows: -
3.1.Trishul Developers/the 1st judgment debtor ('Developer'
for short) is a partnership firm engaged in the business of real
estate and has constructed several residential and commercial
projects. The said developer is said to be engaged in the business
of constructing an apartment complex in Bangalore in the name and
style of 'Mittal Palms' (hereinafter referred as the 'subject project').
Between 2011 and 2012 the developer enters into several
agreements of sale and construction agreements with several
buyers who are the petitioners in the other two writ petitions. In
19
Writ Petition No.9805 of 2025 agreements to sell and construction
agreements are executed with the home buyers in respect of
apartment complex 'Mittal Palms' which are 43 in number and in
Writ Petition No.9793 of 2025 they are two in number. On 08-12-
2012 the developer and its Managing Partner enter into service
agreements with Smart Asset Services India Pvt. Ltd., ('Smart
Assets' for short) and hired the services of the said Smart Assets to
market and sell apartments of the project of Mittal Palms for a
brokerage commission of 3% of the consideration received by the
petitioners.
3.2. On 01-02-2013 the Smart Assets entered into 30
agreements to sell and 30 construction agreements and paid the
developer a sum of ₹10/- crores against the said agreements, by
contending that execution of these agreements of sale would
constitute delivery of services as contemplated under the service
agreement. On the same day, i.e., on 01-02-2013 Smart Assets
entered into a supplemental agreement and a marketing agreement
with the developer. Therefore, there were plethora of agreements
to sell i.e., construction agreements and marketing agreements.
20
The Developer completed the shell and core in the construction, but
were unable to complete the road development in the apartment
complex. It is the averment that they could not do it for the reason
beyond their control. Smart Assets invoking the arbitration clause,
owing to the dispute that has arisen between the parties,
approached the Arbitral Tribunal in A.C.No.37 of 2018 wherein
Smart Assets sought for refund of the entire amount invested along
with interest.
3.3. After contest, on 28-12-2018 an arbitral award comes to
be passed in A.C.No.37 of 2018 allowing the claim petition and
directing the developer to pay Smart Assets an amount of
₹26,92,80,169/- along with interest at 9% per annum from the
date of claim statement till the date of settlement. The Arbitral
Tribunal also awarded costs of arbitral proceedings at ₹6,32,000/-.
When the award was not fulfilled, the decree holder filed an
execution petition in Commercial Execution No.1366 of 2019 before
the Commercial Court at Bangalore for enforcement of arbitral
award and sought recovery of ₹26,92,80,169/- along with
applicable interest and costs. The legal proceedings that were
21
initiated against the arbitral award by the judgment debtor failed.
Therefore, the arbitral award that was passed as noted hereinabove
becomes final up to the Apex Court. Thus, ended the legal
proceedings challenging the aforesaid arbitral award.
3.4. Now comes the arena of the executing Court. An
application comes to be filed by the Smart Assets/decree holder in
I.A.No.5 of 2024 under Order 21 rule 54 of the CPC before the
executing Court for attachment of 144 apartments in the subject
project. The judgment debtors 1 to 5 filed their objections
contending that the value of the attached property exceeds the
decretal amount. On 12-11-2024 the executing Court passes an
order allowing the said application by attaching 144 units, on the
score that merely because the value of the property sought to be
attached was more than the award, it does not in any way hold the
Court from passing an order of attachment. Applications galore
before the concerned Court.
3.5. An application in I.A.No.37 of 2025 was filed before the
executing Court seeking modification of the order dated
22
12-11-2024, by contending that they have no objection to the
attachment and consequent sale of 24 apartment units of 2 and 3
BHK out of the 144 apartments. The judgment debtors also
contended that 120 apartments were subject matter of third-party
rights and the same would result in multiplicity of proceedings. The
remaining 24 apartments, as they were unencumbered they have
no objection to attach the said apartments. On an application filed
by the decree holders in I.A.No.69 of 2025 under Order 21 Rule 64
the executing Court issues a proclamation of sale and sale warrant
by the impugned order. Writ Petition No.6807 of 2025 is filed
challenging the order attaching 144 apartments in terms of the
order of the concerned Court dated 12-11-2024. The second order
that was passed on I.A.No.69 of 2025 issuing the proclamation of
sale is challenged in Writ Petition No.6830 of 2025. 83 apartments
were being put to public auction pursuant to orders of the executing
Court.
3.6. Several buyers of the apartments who had filed
applications before the concerned Court rushed to this Court
challenging the said public auction. A coordinate Bench of this Court
23
on 02-04-2025 granted an interim order of stay in Writ Petition
No.6830 of 2025 directing the respondent not to create third party
rights and interest insofar as 59 flats as observed hereinabove.
After the order of the coordinate Bench on 03-04-2025 a spot sale
took place for 24 apartments and the Court sale took place later on
15-04-2025 for the said 24 apartments. It is at that stage, the
matter is heard.
4.1. The learned senior counsel Sri S.S.Naganand appearing
for the petitioners/Developer would vehemently contend that the
sale proclamations and sale warrants issued are invalid as they
suffer from arbitrariness and non-application of mind. The
impugned order was passed despite the petitioners objecting sale of
120 flats, as they are already subject matter of third-party rights.
The order not being restricted only to 24 flats is bad in law. The
learned senior counsel submits that sale of properties under Order
21 Rule 64 of the CPC must be to the limited extent of satisfying
the decretal sum. He would submit that it is the duty of the
executing Court to decide whether it is necessary for the entire
property to be attached and brought to sale. The concerned Court
24
did not enter into the said examination. Therefore, the executing
Court has not examined the fair value of the property and is in
violation of mandatory requirement of Order 21 Rule 64 of the CPC,
which observes that such examination is necessary to satisfy the
decree and no such sale can be allowed without examining the fair
value of the property.
4.2. It is the submission of the learned senior counsel that the
executing Court did not bear in mind that the attachment measures
2,25,995 sq.ft. for which the latest market value would amount to
₹91,07,06,632/-, while the decretal amount was less than ₹30/-
crores. Therefore, the executing Court has attached properties for
which valuation actually taken would be more than ₹200/- crores
and the decretal amount including interest would be less than ₹45/-
crores. The learned senior counsel has placed reliance upon several
judgments of the Apex Court, all of which would bear consideration
in the course of the order qua its relevance.
5. Per contra, the learned counsel representing the decree
holders would vehemently contend that the bailiff report indicates
25
that valuations of both Smart Assets and the developer/judgment
debtor are considered. Once the decretal amount is determined and
the sale proclamation is issued, the judgment debtor cannot spring
in the rigour of Order 21 Rule 64 of CPC. The Court, while stating
the estimated value of the property, has to look into the entire
material and then pass an order. Mere inadequacy of price, in the
absence of a better purchaser, cannot be a ground to set aside the
Court sale, as the Court sale is a forced sale and the value is always
underestimated and nothing prevents the Judgment Debtor from
bringing a better offer to the Authorities. The learned counsel
appearing for the decree holder has also relied upon several
judgments of the Apex Court and that of this Court, all of which
would bear consideration qua its relevance in the course of the
order.
6. The learned counsel Sri Aditya Narayan appearing for the
buyers would submit that the buyers have projected that they have
waited for 10 to 12 years for the project after having invested their
amounts. The rights of the buyers should be taken note of is their
submission relying upon several judgments of the Apex Court and
26
that of this Court on the issue of right of a buyer vis-à-vis the
attachment order under Order 21 Rule 58 of the CPC. The said
judgments would bear consideration qua its relevance in the course
of the order.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts, link in the chain of events, dates
therein are all a matter of record. They would not require any
reiteration. The issue now would be, whether the impugned order
dated 28-02-2025 passed on I.A.No.69 of 2025 under Order 21
Rule 64 of the CPC issuing proclamation of sale for 83 apartments is
valid in the eye of law. Since application is filed under Order 21
Rule 64 of the CPC, I deem it appropriate to notice the said
provision. It reads as follows:
"ORDER XXI
Execution of Decrees and Orders
Payment under Decree
.... .... ....
27
64. Power to order property attached to be sold and
proceeds to be paid to person entitled.--Any Court
executing a decree may order that any property attached by it
and liable to sale, or such portion thereof as may seem
necessary to satisfy the decree, shall be sold, and that the
proceeds of such sale, or a sufficient portion thereof, shall be
paid to the party entitled under the decree to receive the same."
Order 21 Rule 64 of the CPC empowers the Court executing a
decree sale of attached property or only so much of it as is
necessary to satisfy the decree amount ensuring that the sale is
proportionate to the debt owed preventing sale of excess property.
9.1. Order 21 Rule 64 of the CPC has been interpreted by the
Apex Court in TAKKASEELA PEDDA SUBBA REDDI v. PUJARI
PADMAVATHAMMA1 as under:
".... .... ....
3. In this appeal the facts are more or less undisputed
and the only serious point argued by the appellant is that the
High Court was in error in setting aside the sale because even if
the entire decretal amount was not mentioned in the sale
proclamation, that was at best an irregularity which did not
cause any prejudice to the judgment-debtor. It was also argued
by learned Counsel for the appellant that the judgment-debtor
did not raise any objection before the Executing Court against
continuing the sale of other properties situated in Village
Gudipadu. It was next submitted that the fifth
respondent/decree-holder had obtained another decree in OS 19
of 1953 and the total amount under the two decrees fully
1
(1977) 3 SCC 337
28
justified the selling of the properties in Village Gudipadu also,
particularly when the decree-holder had taken an order from the
Executing Court for rateable distribution of the sale proceeds. It
is true that the High Court has not considered this aspect of the
matter, but in our opinion the contentions raised by the
appellant are wholly untenable. It is not disputed that the
warrant of sale was prepared long after the fifth
respondent/decree-holder had obtained the second decree in OS
19 of 1953 and yet no attempt was made by the decree-holder
to approach the Court for amending the decretal amount
mentioned in the sale proclamation, so as to include the decretal
amount not only of the decree in the first suit OS 15 of 1949 but
also of the decree in the second suit in OS 19 of 1953. In these
circumstances, therefore, under the provisions of Order
21 Rule 64 of the Code when the amount as specified in
the sale proclamation was fully satisfied by the sale of
the properties in village Devanoor, the Court should have
stopped the sale of further items of the properties. It is
manifest that where the amount specified in the
proclamation of sale for the recovery of which the sale
was ordered is realised by sale of certain items, the sale
of further items should be stopped. This, in our opinion, is
the logical corollary which flows from Order 21 Rule 64 of
the Code which may be extracted thus:
"Any Court executing a decree may order
that any property attached by it and liable to sale,
or such portion thereof as may seem necessary to
satisfy the decree, shall be sold, and that the
proceeds of such sale, or a sufficient portion
thereof, shall be paid to the party entitled under
the decree to receive the same."
Under this provision the Executing Court derives
jurisdiction to sell properties attached only to the point at
which the decree is fully satisfied. The words "necessary
to satisfy the decree" clearly' indicate that no sale can be
allowed beyond the decretal amount mentioned in the
sale proclamation. In other words, where the sale fetches
a price eaual to or higher than the amount mentioned in
the sale proclamation and is sufficient to satisfy the
decree, no further sale should be held and the Court
should stop at that stage. In the instant case, we have
29
already indicated that the sale of lands in village Devanoor alone
fetched a sum of Rs16,800 which was more than sufficient to
satisfy the amount of Rs 16,715-8-0 mentioned in the sale
proclamation. It is true that the decree-holder had obtained
another decree in OS 19 of 1953, but there is nothing to show
that the decree-holder had approached the Court for including
the second decretal amount in the proclamation of sale. In these
circumstances. therefore, we are clearly of the opinion that the
Executing Court was not justified, in the facts and circumstances
of the present case, in selling the propeties situated in Village
Gudipadu. The fact that the judgment-debtor did not raise
an objection on this ground before the Executing Court is
not sufficient to put him out of Court because this was a
matter which went to the very root of the jurisdiction of
the Executing Court to sell the properties and the non-
compliance with the provisions of Order 21 Rule 64 of the
Code was sufficient to vitiate the same so far as the
properties situated in Village Gudipadu were concerned. For
these reasons, the contentions raised by Counsel for the
appellant must be overruled.
4. This, however, does not put an end to the issue,
because the High Court, while setting aside the sale, has passed
no order for adjusting the equities between the parties.
According to the appellant he had taken possession of the
properties purchased by him at the auction-sale and had made
substantial improvements. If the sale of these properties is to
be set aside, the appellant will have to return these properties
to the judgment-debtor, but he will be entitled to receive the
value of improvements made by him during the time he was in
possession of those properties in addition to the return of the
sum of Rs 12,500. The Executing Court will have to hold an
inquiry into the matter and determine the value of the
improvements made by the appellant which will have to be paid
to him. The appellant will not be entitled to any interest on the
value of the improvements if he is found to be in possession of
the properties. If, however, the Executing Court finds that the
auction-purchaser was not in possession of the properties and
the properties continued to be in possession of the judgment-
debtor, then the question of the value of improvements will
naturally not arise. In that event the judgment-debtor will have
to refund the amount of Rs 12,500 to the appellant with interest
30
at the rate of 12 per cent per annum from the date of sale up to
the date of refund."
9.2. The Apex Court, later, in AMBATI NARASAYYA v.
M.SUBBA RAO2 has held as follows:
".... .... ....
7. It is of importance to note from this provision
that in all execution proceedings, the court has to first
decide whether it is necessary to bring the entire
attached property to sale or such portion thereof as may
seem necessary to satisfy the decree. If the property is
large and the decree to be satisfied is small, the court
must bring only such portion of the property, the
proceeds of which would be sufficient to satisfy the claim
of the decree holder. It is immaterial whether the
property is one, or several. Even if the property is one, if
a separate portion could be sold without violating any
provision of law only such portion of the property should
be sold. This, in our opinion, is not just a discretion, but
an obligation imposed on the court. Care must be taken
to put only such portion of the property to sale the
consideration of which is sufficient to meet the claim in
the execution petition. The sale held without examining
this aspect and not in conformity with this requirement
would be illegal and without jurisdiction.
8. In Takkaseela Pedda Subba Reddi v. Pujari
Padmavathamma [(1977) 3 SCC 337, 340] this Court
after examining the scope of Rule 64 of Order XXI CPC
has taken a similar view: (SCC p. 340, para 3)
"Under this provision the executing court
derives jurisdiction to sell properties attached only
to the point at which the decree is fully satisfied.
The words 'necessary to satisfy the decree' clearly
indicate that no sale can be allowed beyond the
2
1989 Supp (2) SCC 693
31
decretal amount mentioned in the sale
proclamation. In other words, where the sale
fetches a price equal to or higher than the amount
mentioned in the sale proclamation and is
sufficient to satisfy the decree, no further sale
should be held and the court should stop at that
stage."
9. We may again hark back to the case of the appellant.
The amount claimed in the execution petition was about Rs
2400. To realize that amount the land measuring 10 acres was
sold for Rs 17,000. The appellate court has stated that the land
being one, could not have been divided. Shri Ganesh, learned
Counsel for the respondent sought to justify that view. But we
find it difficult to appreciate that reason. It seems to be against
commonsense. The land is not indivisible. Nor division is
impracticable or undesirable. Out of 10 acres, the court could
have conveniently demarcated a portion and sold it.
Unfortunately, no such attempt was made and it was not
even thought of. The court has blindfold sold the entire
property. This is a usual feature which we have noticed in
most of the execution cases. We must deprecate this
tendency. There is a duty cast upon the court to sell only
such property or a portion thereof as necessary to satisfy
the decree. It is a mandate of the legislature which
cannot be ignored. We cannot, therefore, sustain the
impugned sale. It must be set aside being in
contravention of the provisions of Rule 64 Order XXI
CPC."
The Apex Court elucidates that it is the duty cast upon the Court
under Order 21 Rule 64 to sell only such property or a portion
thereof as may be necessary to satisfy the decree. The Apex Court
holds that it is the mandate of the legislature and cannot be
ignored.
32
9.3. The Apex Court, later, in S.S. DAYANANDA v. K.S.
NAGESH RAO3 holds as follows:
".... .... ....
4. It is contended for the petitioner that the executing
court had found that the adequacy of consideration is not a
ground for setting aside the sale but the appellate court and the
High Court have not gone into that aspect of the matter. The
appellant having purchased the property valued in the
proclamation at Rs 85,000 the sale for Rs 67,000 was adequate
and, therefore, the sale could not be set aside. We find no force
in the contention. It is seen that the High Court has noted
that the procedural compliance of Order 21, Rule 64 CPC
was not adhered to which is a mandatory requirement as
held by this Court in DeshBandhu Gupta v. N.L. Anand &
Rajinder Singh [(1994) 1 SCC 131]. Equally the sale
consideration of the property was in excess of the
execution. Under these circumstances, the High Court is
justified in confirming the order of the appellate court
setting aside the sale."
In this judgment the Apex Court holds that compliance with Order
21 Rule 64 is mandatory and the executing Court is required to
consider whether the sale consideration is in excess of the
execution.
3
(1997) 4 SCC 451
33
9.4. The Apex Court, later, in S.MARIYAPPA v. SIDDAPPA4
by following its earlier judgment in the case of DESH BANDHU
GUPTA v. N.L. ANAND (1994) 1 SCC 131, has held as follows:
".... .... ....
3. In the case of Desh Bandhu Gupta v. N.L.
Anand [(1994) 1 SCC 131] it has been held by this Court
as follows: (SCC pp. 146-47 & 150, paras 14 & 17)
"14. Proviso to sub-rule (4) of Rule 17 of
Order 21 provides the procedure to receive the
application for execution of the decree. In the case
of a decree for payment of money, the value of the
property attached shall, as nearly as may be,
correspond with the amount due under the decree.
Rule 64 of Order 21 charges the executing court
that it may order attaching of any property to the
extent that 'such portion thereof as may seem
necessary to satisfy the decree would be sold'. It
is also enjoined under sub-rule (2)(a) of Rule 66
of Order 21 that where a part of the property
would be sufficient to satisfy the decree the same
be sold by public auction. Form 27 of Appendix E
of the Schedule also directs the court auctioneer
to sell so much of the said property as shall realise
the sum in the said decree and costs. The Code,
therefore, has taken special care charging the duty
on the executing court and it has a salutary duty
and a legislative mandate to apply its mind before
settling the terms of proclamation and satisfy that
if part of such property as seems necessary to
satisfy the decree should be sold if the sale
proceeds or portion thereof is sufficient for
payment to the decree-holder or the person
entitled under the decree to receive the amount
and so much of that property alone should be
ordered to be sold in execution. In Ambati
Narasayya v. M. Subba Rao [1989 Supp (2) SCC
693] this Court held that it is the duty cast upon
the court under Order 21 Rule 64 to sell only such
4
(2005) 10 SCC 235
34
property or a portion thereof as may be necessary
to satisfy the decree. It is a mandate of the
legislature which cannot be ignored. Therein for
execution of a decree of a sum of Rs 2000 and costs, the
appellant's 10 acres land was brought to sale which was
purchased for a sum of Rs 17,000 subject to discharge
of a prior mortgage of Rs 2000. This Court held that
without the court's examining whether a portion
of the property could be sold, the sale held was
not in conformity with the requirement of Order 21
Rule 64 and it was held to be illegal and without
jurisdiction. The sale was set aside and the court
was directed to put the judgment-debtor in
possession of the land and to refund the sale
amount to the auction-purchaser. Further direction
was given to execute the decree in accordance
with law. In Mangal Prasad v. Krishna Kumar
Maheshwari [1992 Supp (3) SCC 31] a shop was
sold to realise a decree debt of about Rs 29,000
and the sale price at the auction was rupees one
lakh and odd. This Court finding that it is excessive
execution, set aside the sale and directed return of
the sale amount to the auction-purchaser with
interest @ 12%. In Takkaseela Pedda Subba
Reddi v. Pujari Padmavathamma [(1977) 3 SCC
337] to recover the decree debt in two decrees,
the properties situated in two different villages
were brought to sale. In the first instance the
property in 'D' village fetched a sum of Rs 16,880, which
was sufficient to satisfy the decretal amount. The
property in 'G' village was also sold which fetched a sum
of Rs 12,000. This Court set aside the sale of 'G' village.
Admittedly the site in sale is to the extent of 550 sq
yards, situated in a commercial area around which the
petroleum installations are established. Though, as
contended by Shri Madhava Reddy, that there may be
building regulation for division of the property into
portions, but the court made no attempt to sell a portion
of the property, maybe 100 yards or 150 yards out of it,
or whether undivided portion thereof would have
satisfied the decree debt. It could be legitimately
concluded that the court did not apply its mind at all to
this aspect as well.
***
35
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 Section 47. 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 substantial injury. The
total absence of drawing up of the proclamation of sale
and settlement of its term by judicial application of mind
renders the sale a nullity being void. It is covered by
Section 47. The non-application of mind whether sale of
a part of the property would satisfy the decree debt is a
material irregularity doing substantial injury to the
appellant attracting Order 21 Rule 90. In either case the
sale is liable to be set aside. It is true that there is
distinction between mere irregularity and material
irregularities and the sale is not liable to be set aside on
proof of mere irregularity. It must be material
irregularity and the court must be satisfied that on
account thereof substantial injury was sustained by the
appellant. The sale of 550 sq yards for recovery of a
paltry sum of Rs 7780.33, without selling a portion
thereof, caused substantial injury to the appellant."
9.5. Later, the Apex Court in BALAKRISHNAN v.
MALAIYANDI KONAR5 has held as follows:
".... .... ....
8. Order 21 Rule 64 reads as follows:
"64. Power to order property attached to be
sold and proceeds to be paid to person entitled.--
Any court executing a decree may order that any
property attached by it and liable to sale, or such
portion thereof as may seem necessary to satisfy
the decree, shall be sold, and that the proceeds of
5
(2006) 3 SCC 49
36
such sale, or a sufficient portion thereof, shall be
paid to the party entitled under the decree to
receive the same."
9. The provision contains some significant words.
They are "necessary to satisfy the decree". Use of the
said expression clearly indicates the legislative intent
that no sale can be allowed beyond the decretal amount
mentioned in the sale proclamation. (See Takkaseela
Pedda Subba Reddi v. Pujari Padmavathamma [(1977) 3
SCC 337: AIR 1977 SC 1789].) In all execution
proceedings, the court has to first decide whether it is
necessary to bring the entire property to sale or such
portion thereof as may seem necessary to satisfy the
decree. If the property is large and the decree to be
satisfied is small the court must bring only such portion
of the property the proceeds of which would be sufficient
to satisfy the claim of the decree-holder. It is immaterial
whether the property is one or several. Even if the
property is one, if a separate portion could be sold
without violating any provision of law only such portion
of the property should be sold. This is not just a
discretion but an obligation imposed on the court. The
sale held without examining this aspect and not in
conformity with this mandatory requirement would be
illegal and without jurisdiction. (See Ambati
Narasayya v. M. Subba Rao [1989 Supp (2) SCC 693].)
The duty cast upon the court to sell only such property or
portion thereof as is necessary to satisfy the decree is a
mandate of the legislature which cannot be ignored.
Similar view has been expressed in S.
Mariyappa v. Siddappa [(2005) 10 SCC 235].
10. In S.S. Dayananda v. K.S. Nagesh Rao [(1997) 4
SCC 451] it was held that the procedural compliance with
Order 21 Rule 64 of the Code is a mandatory requirement.
This was also the view expressed in Desh Bandhu
Gupta v. N.L. Anand [(1994) 1 SCC 131]."
Apex Court holds that in Order 21 Rule 64 the words found are
"necessary to satisfy the decree". The intention of the legislature is
37
clear that it intends that no sale can be allowed beyond the decretal
amount mentioned in the sale proclamation. The Apex Court holds
that it is not a discretion of the concerned Court, but an obligation
imposed on the Court by the legislature. If a proclamation is issued
without examining this aspect, it would not be in conformity with
the mandatory requirement and resultantly it would be an order
which is illegal.
9.6. The Apex Court again in SAI ENTERPRISES v.
BHIMREDDY LAXMAIAH6 has held as follows:
".... .... ....
7. However, the grievance of the appellant so far as
non-compliance with the requirements of Order 21 Rule
64 of the Code is concerned is on sound footing.
8. Order 21 Rule 64 reads as follows:
"64. Power to order property attached to
be sold and proceeds to be paid to person
entitled.--Any court executing a decree may
order that any property attached by it and liable
to sale, or such portion thereof as may seem
necessary to satisfy the decree, shall be sold, and
that the proceeds of such sale, or a sufficient
portion thereof, shall be paid to the party entitled
under the decree to receive the same."
9. The provision contains some significant words.
They are "necessary to satisfy the decree". Use of the
6
(2007) 13 SCC 576
38
said expression clearly indicates the legislative intent
that no sale can be allowed beyond the decretal amount
mentioned in the sale proclamation. (See Takkaseela
Pedda Subba Reddi v. Pujari Padmavathamma [(1977) 3
SCC 337 : AIR 1977 SC 1789] .) In all execution
proceedings, court has to first decide whether it is
necessary to bring the entire property to sale or such
portion thereof as may seem necessary to satisfy the
decree. If the property is large and the decree to be
satisfied is small the court must bring only such portion
of the property the proceeds of which would be sufficient
to satisfy the claim of the decree-holder. It is immaterial
whether the property is one or several. Even if the
property is one, if a separate portion could be sold
without violating any provision of law only such portion
of the property should be sold. This is not just a
discretion but an obligation imposed on the court. The
sale held without examining this aspect and not in
conformity with this mandatory requirement would be
illegal and without jurisdiction. (See Ambati
Narasayya v. M. Subba Rao [1989 Supp (2) SCC 693] .)
The duty cast upon the court to sell only such portion or
portion thereof as is necessary to satisfy the decree is a
mandate of the legislature which cannot be ignored.
Similar view has been expressed in S.
Mariyappa v. Siddappa [(2005) 10 SCC 253] . The
position was also highlighted
in Balakrishnan v. Malaiyandi Konar [(2006) 3 SCC 49] .
10. In the aforesaid background normally we would have
remitted the matter for consideration of the aspects covered by
Order 21 Rule 64 of the Code. But considering the peculiar facts
of the case and the long passage of time, we direct that
Respondent 1 shall pay a sum of rupees one lakh to the
appellant within a period of three months. In case of non-
payment of the aforesaid amount, the appellant shall be free to
pay a sum of Rs 3,12,000 with 9% interest from the date of
auction, to Respondent 1 and get the property conveyed in his
favour under the directions of the Court."
39
The words 'necessary to satisfy the decretal amount' found in Order
21 Ruel 64 is the indication of the legislative intent that no sale can
be allowed beyond the decretal amount. The Court has a duty to
first decide whether it is necessary to bring the entire property to
sale or such portion thereof, as may seem necessary to satisfy the
decree. This is the mandatory requirement and without the
proclamation being in conformity with this mandatory requirement,
the proclamation would be illegal.
9.7. In BHIKCHAND v. SHAMABAI DHANRAJ GUGALE7
the Apex Court holds as follows:
".... .... ....
22. It is also important to bear in mind the provisions
contained in Rule 54(1) Order XXI read with Rule 66 of Order
XXI CPC wherein it is provided that either whole of the attached
property or such portion thereof as may seem necessary to
satisfy the decree shall be sold in auction. If there is no
valuation of the property in the attachment Panchanama and
there being no separate provision for valuation of the property
put to auction, it is to be understood that the valuation of the
property mentioned in attachment Panchanama prepared under
Rule 54 can always provide the estimated value of the property
otherwise the provisions enabling the court to auction only a
part of the property which would be sufficient to satisfy the
decree would be unworkable or redundant. In the case in hand,
the assessed value of all the attached properties is Rs.
1,05,700/- whereas the original decretal sum was Rs. 27,694/-
7
2024 SCC OnLine SC 929
40
which is about 26.2% of the total value of the property.
Therefore, when only one of the attached properties was
sufficient to satisfy the decree there was no requirement
for effecting the sale of the entire attached properties.
23. In the matter
of Balakrishnan v. Malaiyandi Konar this Court
observed thus:
"9. The provision contains some significant
words. They are "necessary to satisfy the decree".
Use of the said expression clearly indicates the
legislative intent that no sale can be allowed
beyond the decretal amount mentioned in the sale
proclamation. (See Takkaseela Pedda Subba
Reddi v. Pujari Padmavathamma [(1977) 3 SCC
337 : AIR 1977 SC 1789].) In all execution
proceedings, the court has to first decide whether
it is necessary to bring the entire property to sale
or such portion thereof as may seem necessary to
satisfy the decree. If the property is large and the
decree to be satisfied is small the court must bring
only such portion of the property, the proceeds of
which would be sufficient to satisfy the claim of
the decree-holder. It is immaterial whether the
property is one or several. Even if the property is
one, if a separate portion could be sold without
violating any provision of law only such portion of
the property should be sold. This is not just a
discretion, but an obligation imposed on the court.
The sale held without examining this aspect and
not in conformity with this mandatory requirement
would be illegal and without jurisdiction.
(See Ambati Narasayya v. M. SubbaRao [1989
Supp (2) SCC 693].) The duty cast upon the court
to sell only such property or portion thereof as is
necessary to satisfy the decree is a mandate of the
legislature which cannot be ignored. Similar view
has been expressed in S.
Mariyappa v. Siddappa [(2005) 10 SCC 235].
10. In S.S. Dayananda v. K.S. Nagesh
Rao [(1997) 4 SCC 451] it was held that the
procedural compliance with Order 21 Rule 64 of
the Code is a mandatory requirement. This was
41
also the view expressed in DeshBandhu
Gupta v. N.L. Anand [(1994) 1 SCC 131]."
24. In Ambati Narasayya v. M. Subba Rao12 this
Court has held that in auction sale this is obligatory on
Court that only such portion of property as would satisfy
decree is sold and not the entire property. This court
observed thus in paras 6, 7 & 8:
"6. The principal question that has been
highlighted before us relates to the legality of the
sale of 10 acres of land without considering
whether a portion of the land could have been sold
to satisfy the decree. It is said that the total sum
claimed in the execution was Rs. 2395.50. The
relevant provision which has a bearing on the
question is Rule 64 Order XXI of the Code of Civil
Procedure and it reads as follows:--
"Order XXI Rule 64 : Power to order
property attached to be sold and proceeds to
be paid to persons entitled.--Any court
executing a decree may order that any
property attached by it and liable to sale, or
such portion thereof as may seem necessary
to satisfy the decree, shall be sold, and that
the proceeds of such sale, or a sufficient
portion thereof, shall be paid to the party
entitled under the decree to receive the
same."
7. It is of importance to note from this
provision that in all execution proceedings, the
court has to first decide whether it is necessary to
bring the entire attached property to sale or such
portion thereof as may seem necessary to satisfy
the decree. If the property is large and the decree
to be satisfied is small, the court must bring only
such portion of the property, the proceeds of
which would be sufficient to satisfy the claim of
the decree holder. It is immaterial whether the
property is one, or several. Even if the property is
one, if a separate portion could be sold without
violating any provision of law only such portion of
the property should be sold. This, in our opinion, is
not just a discretion, but an obligation imposed on
the court. Care must be taken to put only such
42
portion of the property to sale the consideration of
which is sufficient to meet the claim in the
execution petition. The sale held without
examining this aspect and not in conformity with
this requirement would be illegal and without
jurisdiction.
8. In Takkaseela Pedda Subba
Reddi v. Pujari Padmavathamma [(1977) 3 SCC
337, 340] this Court after examining the scope of
Rule 64 of Order XXI CPC has taken a similar view
: (SCC p. 340, para 3)
"Under this provision the executing
court derives jurisdiction to sell properties
attached only to the point at which the decree
is fully satisfied. The words 'necessary to
satisfy the decree' clearly indicate that no
sale can be allowed beyond the decretal
amount mentioned in the sale proclamation.
In other words, where the sale fetches a price
equal to or higher than the amount
mentioned in the sale proclamation and is
sufficient to satisfy the decree, no further
sale should be held, and the court should stop
at that stage."
25. It is, thus, settled principle of law that court's
power to auction any property or part thereof is not just a
discretion but an obligation imposed on the Court and the
sale held without examining this aspect and not in
conformity with this mandatory requirement would be
illegal and without jurisdiction. In the case at hand, the
Executing Court did not discharge its duty to ascertain
whether the sale of a part of the attached property would
be sufficient to satisfy the decree. When the valuation of
three attached properties is mentioned in the attachment
Panchanama, it was the duty of the Court to have
satisfied itself on this aspect and having failed to do so
the Court has caused great injustice to the judgment
debtor by auctioning his entire attached properties
causing huge loss to the judgment debtor and undue
benefit to the auction purchaser. The fact that the properties
were sold for a sum of Rs. 34,000/- would further demonstrate
that the decree holder who himself is the auction purchaser has
43
calculatedly offered a bid at Rs. 34,000/- despite being aware
that the value of the attached properties is Rs. 1,05,700/-."
The Apex Court summarises the law on Order 21 Rule 64 and holds
that Court's power to auction any property or part thereof is not
just a discretion but an obligation imposed on the Court and the
sale held without examining this aspect would not be in conformity
with the mandatory requirement and would be illegal and without
jurisdiction. The Apex Court sets aside the attachment proceedings
on the ground of non-compliance with Order 21 Rule 64.
10. On the bedrock of the principles laid down by the Apex
Court the order impugned i.e., the order of proclamation of sale and
sale warrant is required to be noticed. The order of the concerned
Court reads as follows:
"Business : IA No.69 filed by DHR u/Order 21 Rule 64
r/w Sec.151 of CPC is hereby allowed.
Consequently issue sale proclamation and
sale warrant in respect of A & B schedule
property referred in memo dated 27.02.2025
sale at spot on 3-04-2025 and sale at Court
premises by 15-04-2025 in respect of
schedule property. If PF and charges paid.
Next purpose Hearing
Next hearing date: 15-04-2025."
44
Further, it is necessary to notice the order passed on two
applications - one filed under Order 21 Rule 54 of the CPC directing
attachment of the property. The reasons for the order are as
follows:
".... .... ....
REASONS
7. Point No.1: It is the case of the DHR that since from
the date of award passed by the Arbitration Tribunal the
Judgment debtor is trying to avoid to make payment. He has
filed proceedings under section 34 of Arbitration Act, same was
came to be dismissed. Aggrieved by the said order he has again
preferred Com.A.S.64/2019 wherein the court upheld the
arbitration award passed by the Arbitrator. Thereafter he has
preferred Com.A.P.305/2022 before the Hon'ble High Court of
Karnataka under section 37 of Arbitration Act. The Hon'ble High
Court was pleased to dismiss the said prayers. Aggrieved by the
said order the JDR herein preferred SLP before the Hon'ble
Supreme Court. The Hon'ble Supreme Court was also pleased to
dismiss the SLP. Even then the JDR has not come forward to
pay the award amount and he is evading payment of the award
amount. The decree holder has also preferred suit in
0.S.No.25242/2024 before the City Civil Court wherein the court
was granted the exparte ad interim injunction order restraining
the judgment debtor from alienating the suit schedule
properties. Now the applicant has sought for attachment of 144
flats referred under application. If the application is allowed the
144 flats referred under application are attached then only the
decree holder is able to recover the amount. Otherwise the very
purpose of passing the award and filing execution petition will
be defeated. These facts have been denied by the opponent JDR
in the objection statement contended that DHR has suppressed
the material fact with a malafide intention he has preferred this
application. He has already filed similar nature of application
under I.A.No.3 and this court was granted the relief sought
under it. The DHR has not taken steps to execute the award
against those properties. Without taking steps against the said
45
properties now he has filed present application concealing the
fact of filing the suit in respect of the properties referred under
the application. Until and unless the DHR is able to execute the
petition against the properties already attached he cannot
proceed with the properties referred under application. The
application is devoid from merit, prayed for dismissal of the
application.
8. Filing of suit seeking for prohibitory relief against the
property cannot be considered as resjudicata. It is also argued
by the learned counsel for DHR that mere decree holder has
obtained order of attachment of some of the properties of JDR
does not bars him to proceed with other properties. The DHR is
entitled to seek attachment of movable and immovable
properties of JDR until and unless the decree/award is fully
satisfied. In support of his arguments as already stated above
he has relied upon the decisions of Hon'ble Bombay High Court
as well as judgment of Hon'ble Apex Court of India. As per the
principles laid down in the above referred cases one point is
clear that if DHR has obtained attachment warrant of immovable
property belonging to JDR itself does not bar him to proceed
against the other properties of JDR. It is also brought to the
notice of the court in the course of arguments that the
attachment warrant issued against immovables as per order
under I.A.No.3 of this court has already been mortgaged in
favour of bank until and unless the JDR discharge the liability
the property cannot be sold to recover the award amount. Since
the property sought under applications are free from
encumbrances, therefore they can be attached and amount can
be recovered. The learned counsel for JDR has not denied the
contention of the DHR that the properties which have already
been attached in this case under I.A.No.3 are already
mortgaged in favour of the bank. Such being the facts of the
case the relief sought by the DHR for attachment of property
referred under application seems to be reasonable. Another
contention set up by JDR is the property sought for attachment
under application values more than the award amount. Hence
DHR cannot proceed against these properties. If really the
property / flats sought for attachment under these applications
values more than the ward amount payable to the DHR the JDR
is at liberty to pay the award amount and get release his flats.
Merely because the value of the property sought for attachment
is more the award amount attachment cannot be made,
46
contention does not holds water. As per the principles laid down
in the above referred cases as well as facts and circumstances
of the present case that the award is passed in the year 2018 till
date the JDR has not come forward to pay the award amount.
Under such circumstances with no alternative the DHR has
sought for attachment of 144 flats referred under application for
attachment, if the attachment warrant against these properties
are not issued mean time the JDR may sell them and get the
amount. Under such circumstances DHR has no means to
recover from the JDR, hence the prayer sought in the
application deserves to be considered. Otherwise DHR will be
put to irreparable loss and untold hardship, arguments holds
good that taking into consideration all these facts and
circumstances in my view the applicant made out good grounds
as sought in the application, has proved point No.1. Accordingly
I answer it in the Affirmative.
9. Point No.2: For the various reasons discussed in the
above point and findings given by me on it, I proceed to pass
the following:
ORDER
I.A.No.5 filed by DHR under Order 21 Rule
54 of CPC r/w section 151 CPC is allowed.
Issue attachment warrant of immovable
properties of 144 flats referred under application if
PF and charges paid.
Returnable by 30/11/2024."
After the order of attachment two memos are filed by the decree
holders and those two memos are answered by the impugned order
as afore-quoted.
11. If the purport of the provision under Order 21 Rule 64 and
its interpretation by the Apex Court is noticed, the sale of property
that directed spot sale of 83 flats on 03-04-2025 and consequent
court sale on 15-04-2025 would run foul of the very provision. The
coordinate Bench of this Court had permitted sale of only 24 flats.
The very next day the preparation for sale proclamation is made
and spot auction is held without adequate notice to any person.
Notice affixed at the spot was that sale was being conducted for 83
apartments instead of 24 and during this spot sale out of 24 units
only 14 units received the bid. On 29-04-2025 sale proclamation is
again issued for the unsold 10 flats for spot auction on 10-06-2025
and Court auction on 30-06-2025. The auction sale was said to be
postponed for several other reasons when the proceedings were
being heard before this Court. The concerned Court does not even
apply its mind to the rigour of Order 21 Rule 64 CPC.
12. Contentions galore before this Court that decree holders
are waiting for the decree to be executed and this Court should not
interfere. This Court would not have interfered if the Court had
acted in an appropriate manner i.e., in strict consonance with Order
21 Rule 64 CPC. There is a serious dispute with regard to the
present market value of the property and admittedly amount
included the interest. According to the learned senior counsel the
decretal amount along with interest would not cross ₹43/- crores.
But, 83 properties that are now subject matter of proclamation
apart from they being contrary to the interim order are to be valued
at ₹200/- crores. Therefore, the concerned Court ought to have
applied its mind to the rigour of Order 21 Rule 64 CPC and then
passed the order impugned. On this sole score the attachment and
the proclamation that is issued way beyond the decretal amount or
without fulfilling the obligation of the statute cannot be sustained in
law. In that light the orders of attachment to the orders of Court
sale pursuant to the attachment are rendered unsustainable.
13. The remaining writ petitions are the ones filed by the
buyers. The issue is whether the buyers are to be heard or can be
permitted to file their objections to the attachment and sale
proceedings before the executing Court. Before embarking upon
this aspect, the law in this regard is required to be noticed. Order
21 Rule 58 and Rules 97 to 104 of Order 21 mandate that all
questions raised by the objectors have to be comprehensively
considered on their merit. The objections under Order 21 should be
meaningfully heard, so as to avoid possibility of miscarriage of
justice. The Apex Court in MAYA DEVI v. LALTA PRASAD8 has
held as follows:
".... .... ....
42. I am fully mindful of the fact that the appellant has
not taken any steps for setting aside the ex parte decree against
late Shri Prem Chand Verma. This is only to be expected since
the appellant objector has no reason to evince or harbour any
interest in the inter se dispute between the decree-holder and
the judgment-debtor. Indeed, if the appellant had made any
endeavour to assail or nullify the decree, it would be fair to
conclude that she had been put up by the judgment-debtor in
an endeavour to defeat the decree. In these circumstances, my
in-depth analysis of the law pertaining to decreeing what is
essentially a penalty clause may, on a perfunctory or superficial
reading, be viewed as non-essential to the context. This,
however, is not so. On a conjoint reading of Order 21 Rule
58 CPC and the fasciculus of Order 21 comprising Rules
97 to 104, it becomes clear that all questions raised by
the objector have to be comprehensively considered on
their merits. In the case in hand, the decree from which
the execution proceedings emanate is not one for
delivery of possession, but is a simple money decree.
Order 21 proscribes the filing of a separate suit and
prescribes that all relevant questions shall be determined
by the court. Objections under Order 21 should be
meaningfully heard so as to avoid the possibility of any
miscarriage of justice. It is significant in this regard that
Rule 103 ordains that where any application has been
adjudicated upon under Rule 98 or Rule 100, the order
made thereon shall have the same force and be subject to
(2015) 5 SCC 588
the same conditions as to an appeal or otherwise, as if it
were a decree."
The Apex Court later interpreting Order 21 Rule 58 which deals with
attachment of property of the judgment debtor, holds that persons
interested in the property can approach the executing Court and the
executing Court is entitled to look into the said claim, right and
interest in the property and not direct a separate suit. The Apex
Court in DANESH SINGH v. HAR PYARI9 has held as follows:
".... .... ....
ii. Questions on whether the judgment-debtor had any
"saleable interest" over the attached/sold property
cannot be brought under the ambit of Rule 90
106. However, the scope of Rule 90 as elaborated in
the aforesaid paragraphs must, by no means, be read to
mean that a grievance that the judgment-debtor did not
have any title to the attached property, can be raised by
an applicant under Rule 90. This would squarely fall
within the scope of Rule 58 wherein one is entitled to
make a claim or raise objections "on the ground that such
property was not liable to attachment". The same would
be beyond the purview of Rule 90 also for the reason that
under this rule the executing court, unlike Rule 58, does
not have the expanded scope to decide all questions
relating to the right, title, or interest arising between the
parties to the proceeding.
... ... ...
121. The proviso to sub-rule (1) of Rule 92 takes
care of a situation where the order of sale has been
2025 SCC OnLine SC 2805
passed while an application under Rule 58 raising a claim
or an objection as regards the attachment of the property
sold, is still pending adjudication. While the process of
sale by itself does not come to a halt solely owing to an
application being filed under Rule 58, the executing court
stands barred from confirming the sale until such an
application under Rule 58 is finally disposed. This is also
due to the fact that upon an order of confirmation of sale
being passed, the same becomes absolute and immune
from being assailed under any rule preceding rule 92.
Therefore, it becomes the duty of the executing court to
ensure that no application remains pending or undecided
when it is making its decision under Rule 92(1).
... .... ....
154. To understand the import of the term "third
party" let us look at a pertinent observation made by
the Law Commission in its 54th Report (Vol 1, pg. 172)
which reads that - "Attachment may be followed by an
application for its removal by a third party, and the
present rules require a summary inquiry and order, which
may be followed by a suit to establish the right denied in
the summary proceedings". This referred to the scheme
of Rule 58 as it existed prior to the 1976 Amendment.
However, the reason behind our drawing attention to this
observation is the acknowledgment that a third party
asserting their title would be able to raise the grievance
that his property has been wrongly attached in the
execution proceedings under Rule 58. The third party
referred herein, in the context of Rule 58, has some
significance as regards how the same term must be
interpreted under Rule 92(4) as well.
... ... ...
158. The interplay of Rules 92(1) and 92(2) respectively,
indicates that such a suit under Rule 92(4) can arise only after
an order confirming the sale under Rule 92(1) has been passed.
We say so because a third party would otherwise be able
to challenge the title of the judgment-debtor under Rule
58 instead, by raising a claim or an objection as regards
the attachment of the property in the execution
proceedings. In other words, the option to assert his title
over the attached property is available to the third party
under Rule 58 until the sale comes to be confirmed. If
knowledge that his property has been attached and sold
in an unrelated execution proceeding, has been acquired
by a third party after the sale has been confirmed under
Rule 92(1), then the only remedy available to him would
be to file a suit challenging the judgment-debtor's title to
the property, alleging the sale to be a nullity. Here,
although he is challenging the title of the judgment-
debtor to the property in question, yet his suit would be
instituted against the auction-purchaser because the sale
has become absolute in favour of the auction purchaser.
Conversely, if the sale is set-aside under Rule 92(2), there
would be no reason for a third party to institute a separate suit
to assert his title, since the remedy to file an objection under
Rule 58 would be re-opened to him.
... ... ...
161. What is relevant from the aforesaid, for the
purposes of our discussion is that, Rule 58 uses the
words "where any claim is preferred to, or any objection
is made to the attachment" along with the words "on the
ground that such property is not liable to such
attachment" respectively. This would indicate that a third
party, i.e., a party who was alien to the proceedings in
the original suit in which the decree was passed, could
also prefer a claim or file an objection under Rule 58
against the attachment of the property by stating that the
judgment-debtor does not have title to such property. By
virtue of Rule 58(2) (in its amended form), all questions
including those relating to the right, title or interest in
the property attached could be looked into by the
executing court. A separate suit in this regard, at this
stage of the execution proceeding, is barred and this is
indicated from the words "and not by a separate suit"
occurring in Rule 58(2).
162. The proviso to Rule 58(1) states that no claim
or objection under Rule 58 shall be entertained by the
executing court under two circumstances - (a) where the
property attached has already been sold before the claim
is made or the objection is preferred under Rule 58, or
(b) where the executing court considers that the claim or
objection preferred was designedly or unnecessarily
delayed. The use of the word "shall" in the proviso
indicates that at least insofar as (a) is concerned i.e.,
when the attached property has already been sold, the
executing court has to mandatorily dismiss the
application made under Section 58. When the executing
court disallows an application under Rule 58 by invoking
clause (a) of the proviso to Rule 58(1), Rule 58(5) comes
into the picture.
163. Rule 58(5) states that when a claim or an objection
is not entertained owing to the mandatory nature of clause (a)
of the proviso to Rule 58(1), then such a party against whom
this Order under Rule 58 was made, may institute a separate
suit to establish the right which he claims to the property that is
the subject matter of attachment in the execution proceedings.
However, during the period in which such a separate suit, if any,
is being decided by the court of competent jurisdiction, the
order refusing to entertain the claim or objection made under
Rule 58 would be conclusive insofar as the progress of the
execution proceedings are concerned.
164. What is evident from the aforesaid reading is that
the executing cannot entertain an application under Rule 58
once the stage of sale has already passed. In other words, it
would only be competent to decide an application under
Rule 58, at stages prior to the occurrence of the sale. The
moment the property comes to be sold, the recourse
available to any third party would be to institute a
separate suit, as so specifically elaborated under Rule
58(5).
165. Having said so, the words "the property attached
has already been sold" under clause (a) of the proviso to Rule
58 could give rise to some interpretational ambiguity. In other
words, it is unclear as to whether the legislature intended this to
refer to a stage when the order of sale has been passed or
whether it refers to a stage when the order of confirmation of
sale has been passed under Rule 92(1). There is, otherwise, a
very stark distinction between these two orders - the former
refers to the order which creates an opportunity to resort to
Rules 89, 90 and 91 respectively to set-aside the sale, and the
latter refers to the order which arises after the applications
made under Rules 89, 90 and 91 respectively have been decided
or when the time for making those applications has lapsed.
Therefore, there is a significant gap between these two orders,
which is, at the least a minimum of 60 days as prescribed under
Article 127 of the Limitation Act, 1963.
166. Let us understand why a conscientious and careful
interpretation of the words "the property attached has already
been sold" is of utmost importance here. One possible way of
interpreting it would be to say that it refers to the order of sale
which is passed once the property has been auctioned and the
auction-purchaser has been chosen. To be more specific, it is
that order after the passing of which the recourse to Rules 89,
90 and 91 respectively would become available. However, with
such an interpretation, the consequence would be that, if an
application under Rule 58 is preferred even one day after the
order of sale has been made, then such an application would
come to be rejected in accordance with clause (a) of the proviso
to Rule 58(1) and Rule 58(5) would be set in motion, whereby
the said applicant could institute a separate suit. To put it
simply, this would mean that the option to institute a suit for
a third party arises from the moment the order of sale
has been passed and he needn't wait until the sale has
been confirmed. Therefore, in that period between the
order of sale and the order confirming sale, which can be
60 days or more (as we had stated previously), any third
party would be able to file a separate suit for a claim or
objection which he could otherwise agitate under Rule
58.
.... .... ....
G. CONCLUSION
256. A conspectus of the aforesaid detailed discussion on
the position of law as regards the doctrine of lis pendens along
with Rules 58, 89 to 92, 99 to 104 of Order XXI CPC
respectively and Section 47 CPC is as follows:
.... .... ....
(v.) The absence of a saleable interest on the part of the
judgment-debtor to the suit property cannot be
brought in as a ground under Rule 90 of Order XXI
CPC. Such a ground would squarely fall within the
ambit of Rule 58 of Order XXI CPC, if the sale is yet
to be confirmed.
.... .... ....
(viii.) The term "third party" under Rule 92(4) would
mean a party other than the judgment-debtor,
decree-holder or the auction-purchaser and would
refer to a party who has not had his right, title or
interest vis-à-vis the property in question
adjudicated under Rule 58, Rule 97 or Rule 99 of
Order XXI CPC respectively. To put it very simply,
the term "third party" under Rule 92(4) would refer
to a party who is extraneous to the original suit
proceedings and the proceedings under Order XXI
CPC, and who either has not had his right, title or
interest adjudicated or having the opportunity to
have his right, title or interest adjudicated, has not
availed such a remedy within the required time.
Such a "third party" would also be someone who
falls outside the scope of Section 47 CPC."
(Emphasis supplied at each instance)
The Apex Court holds that the object of Order 21 Rule 58 is that
third party asserting his title should be able to raise a grievance
that his property has been wrongly attached in the execution
proceedings. Admittedly, 120 apartments that have now become
subject matter of attachment, third party rights have already been
created by the properties being the subject matter of agreement to
sell or otherwise of the buyers who have filed Writ Petition
Nos.9793 of 2025 and 9805 of 2025. In that light and in the light of
the judgments of the Apex Court noted hereinabove, the Court had
the obligation to consider the claim of the buyers qua the
attachment of their properties also. The order that denied them
right of hearing by the impugned order is contrary to law. In that
light, Writ Petition No.6830 of 2025 filed by the judgment debtors
deserves to succeed. So does Writ Petitions filed by the buyers in
Writ Petition Nos.9793 of 2025 and 9805 of 2025.
14. What remains is Writ Petition No.6807 of 2025 which was
filed calling in question the order dated 12-11-2024 challenging the
attachment order. Since this Court had permitted 24 units to be
sold, the attachment order become unsustainable for the present
insofar as remaining 120 units are concerned. Therefore, the said
writ petition is to be allowed in part, except 24 units directed by the
coordinate Bench, as the attachment order runs contrary to law. To
that extent the said petition succeeds.
15. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition No.6830 of 2025 is allowed in part. The
order dated 28-02-2025 passed on I.A.No.69 of 2025 is
quashed.
(ii) Writ Petition No.6807 of 2025 is allowed in part,
except 24 units permitted by the interim order of this
Court. The remaining 120 units attached by the order
dated 12-11-2024 is rendered unsustainable.
(iii) Writ Petition Nos.9793 of 2025 and 9805 of 2025 filed
by the buyers are also allowed. The buyers are entitled
to file their objections and the concerned Court shall
consider the same in accordance with law.
(iv) Matters are remitted back to the hands of the
concerned Court to pass necessary orders answering
the applications filed under Order 21 Rule 54 in terms of
clause (ii) of this order, Order 21 Rule 58 and Order 21
Rule 64 of the CPC in accordance with law, bearing in
mind the observations made in the course of the order.
Consequently, pending applications if any, also stand
disposed.
SD/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ
