Madras High Court
North Arcot District Vanniyakula ... vs M.Radhakrishnan on 7 November, 2025
2025:MHC:2554
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 07.10.2025 Order pronounced on : 07.11.2025
CORAM
THE HONOURABLE MR JUSTICE P.B. BALAJI
CRP.Nos.639 & 640 of 2025
& CMP.Nos.3870 & 13856 of 2025
CRP.No.639 of 2025:
North Arcot District Vanniyakula Kshatriya Sangam,
Rep. by its present Secretary
M.Subramanian,
having office at No.1, Bharathiyar Salai,
Vellore City, Vellore – 632 001. ... Petitioner
Vs.
1.M.Radhakrishnan
2.Aravindan ... Respondents
[R2 impleaded vide Court order
dated 18.06.2025 made in
CMP.No.13858 of 2025 in
CRP.No.639 of 2025]
CRP.No.640 of 2025:
North Arcot District Vanniyakula Kshatriya Sangam,
Rep. by its present Secretary
M.Subramanian,
having office at No.1, Bharathiyar Salai,
Vellore City, Vellore – 632 001. ... Petitioner
1/24
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Vs
M.Radhakrishnan ... Respondent
Common Prayer: Civil Revision Petition filed under Section 115 of CPC,
to set aside the order and decreetal order in E.A.No.1 of 2023 and E.A.No.6
of 2024 in E.P.No.60 of 2013 inV.O.S.No.136 of 2010 dated 18.11.2024 on
the file of the Sub-Judge, Ranipet.
(In both CRPs)
For Petitioner : Mr.N.Manoharan
For Respondent(s) : Mr.T.P.Prabakaran
COMMON ORDER
The revision petitioner is the 1st defendant and 1st judgment debtor in
the execution proceedings initiated by the 1st respondent/decree holder.
2.I have heard Mr.N.Manoharan, learned counsel for the petitioner
and Mr.T.P.Prabakaran, learned counsel for the respondents in both the
revision petitions.
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3.The brief facts, that are necessary to adjudicate the revision, are as
follows:
(a) The 1st respondent/decree holder filed a suit in O.S.No.61 of 2005
before the Principal District Judge, Vellore, which was later transferred and
renumbered as O.S.No.136 of 2010 on the file of the Sub-Court, Vellore.
The suit came to be decreed on 21.09.2013, directing the defendants to pay
Rs.7,20,000/-, together with interest at 6% per annum from the date of the
suit. The defendants preferred A.S.No.3 of 2012 before the I Additional
District Court, Vellore. The said appeal was partly allowed and the 1st
defendant alone was held to be liable and the decree against the other
defendants was set aside.
(b) Subsequent to disposal of AS.No.3 of 2012, the decree holder
filed E.P.No.60 of 2013 for recovery of Rs.11,96,382/- by bringing the
property belonging to the petitioner Society for sale. The revision petitioner
was set ex-parte in the execution proceedings on 15.04.2015 and the
property came to be attached on 29.08.2015. In the meantime, he also filed
Second Appeal in S.A.No.644 of 2013, challenging the decree in A.S.No.3
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of 2013. The said S.A.No.644 of 2013 also came to be dismissed on
19.04.2023 and a Special Leave Petition (c) No.21930 of 2023 was also
dismissed on 15.12.2023, pending the execution proceedings.
(c) Thereafter, the revision petitioner filed an application in E.A.No.1
of 2023 under Section 47 of CPC, questioning the executability of the
decree, as against which order, CRP.No.639 of 2025 has been filed and he
also filed E.A.No.6 of 2024, seeking permission to deposit a sum of
Rs.15,00,781/- and aggrieved by the dismissal of said E.A.No.6 of 2024,
CRP.No.640 of 2025 has been filed. Admittedly, the property has been sold
on 14.08.2023.
4.Mr.N.Manoharan, learned counsel for the revision petitioner would
contend that the suit promissory note having been executed by the
defendants 2, 3 and 5, claiming themselves to be the President, Secretary
and Treasurer of the petitioner Society, cannot make the Society liable for
the borrowing made by them, when the petitioner had admittedly not
executed the promissory note. He would further contend that the suit has
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been filed against the revision petitioner Society which is registered under
the Tamil Nadu Societies Registration Act, 1975, and there has been non-
compliance of Section 20 of the Act and on this ground alone, the decree
cannot be executed and even in terms of Section 18 of the Act, when the
properties of the Society vest with the Committee, the legal proceedings by
or against the Society can be done only by the Committee or the officer
authorised in this regard in the bylaws.
5.The learned counsel for the petitioner would also refer to Section 21
of the Act, which states that the judgment passed against any officer
referred to in Section 20(1) of the Act, cannot be enforced against the
property or against the body of such officer, but against the property of the
Society and admittedly, in the present case, according to the learned counsel
for the petitioner, no decree has been passed against the officer authorised
to defend the suit in the bylaws. He would therefore state that when the
bylaws of the Society did not authorise anyone to prosecute or defend the
proceedings and only in Ex.P2 dated 15.03.2020, clause 31 was inserted by
way of amendment, authorising the General Secretary of the Society to
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conduct cases and the Society admittedly not being represented by any
authorised person in the suit, cannot be proceeded against in order to
execute the decree.
6.It is further contended by Mr.Manoharan that the property worth
more than Rs.3 crores has been sold for a paltry sum of Rs.14,10,000/- in
the Court auction sale held on 14.08.2023. He would also contend that the
5th defendant, who is an executant to the suit promissory note, died on
12.01.2008 and though his death certificate was marked as Ex.P17, the trial
Court has passed a decree against the dead person and pending appeal in
A.S.No.3 of 2012, the 2nd defendant also died on 15.01.2011 and the appeal
came to be partly allowed/decreed, much later on 31.01.2013 and therefore,
the decree, as against the dead persons, is a nullity.
7.The learned counsel for the petitioner would further state that the
decree is therefore not executable and E.A.No.1 of 2023 ought to have been
allowed by the trial Court and unfortunately, on erroneous consideration and
misapplication of law, the executing Court has dismissed the application.
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Alternatively, Mr.N.Manoharan would submit that the revision petitioner
has filed E.A.No.6 of 2023, invoking Section 151 of CPC, seeking
permission to deposit Rs.15,00,781/- and at least the executing Court should
have permitted deposit of the said amount and ensured that the valuable
property of the revision petitioner does not go out of its hands. He would
also attack the manner in which the executing Court has proceeded to bring
the property for sale, even pending the Section 47 application. He would
further contend that the auction purchaser is a close aid of the decree holder
and the fact that both of them are represented by the same counsel would
clearly established that all is not well with the auction sale process. In
support of his contentions, Mr.N.Manoharan, would rely on the following
decisions:
1.Nani Gopal Paul Vs. T.Prasad Singh and others,
(1995) 3 SCC 579.
2.Challamane Huchha Gowda Vs. M.R.Tirumala and
another, (2004) 1 SCC 453.
3.Mangal Prasad (died) by LR's and another Vs.
Krishna Kumar Maheshwari and others, 1992 Supp (3) SCC
4. Uttar Pradesh Cricket Association, A Company
registered under the Companies Act, 1956, rep. by its
President, Shri Rajiv Shukla, having its Regd. Office at
Kamla Towers, Kanpur, Uttar Pradesh Vs. the Uttar
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Pradesh Cricket Association, rep. by its Treasurer
Shri.Imran Ullah, having its registered office at 616,
Kasmanda Apartments, Lucknow, Uttar Pradesh, reported in
2007 2 L.W. 1079.
5.Church of North India Vs. Lavajibhai Ratanjibhai
and others, (2025) 10 SCC 760.
8.Per contra, Mr.T.P.Prabakaran, learned counsel for the respondents
would submit that the sale has already been concluded and EP also has been
terminated and the petitioner has admittedly not deposited the mandatory
5%, contemplated under Order XXI Rule 89 of CPC and only in order to get
over the same, the petitioner has mischievously invoked Section 151 of CPC
and filed an application, as if he is ready to deposit a sum of Rs.15,00,781/-.
9.The learned counsel for the respondents would also state that the
petitioner also filed an application under Order XXI Rule 90 of CPC to set
aside the auction sale and till date, the same has not been withdrawn and in
such circumstances, he would contend that the petitioner cannot maintain
both the applications. He would place reliance on the judgment of the
Hon'bls Supreme Court in Chellamane Huchha Gowda Vs. M.R.Tirumala
and another, reported in 2003 Supp (6) SCR 506 and Ram Karan Gupta Vs.
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J.S.Exim Limited and others, reported in AIR 2013 SC 24. He would also
state that there is no material brought on record by the petitioner to establish
that the suit property would fetch Rs.3 crores and the claim made in the
Section 47 of CPC is only self serving and remains unsubstantiated as on
date. He would therefore pray for dismissal of the revisions petitions.
10.I have carefully considered the submissions advanced by the
learned counsel on either side and I have also gone through the records,
including the orders passed by the executing Court, dismissing both Section
47 petition as well as the permission petition filed by the
petitioner/judgment debtor 1.
11.It is an admitted fact that the revision petitioner Society suffered a
decree. The decree was challenged up to this Court in Second Appeal
proceedings and ultimately, the decree of the First Appellate Court holding
the revision petitioner Society liable to meet the suit claim was confirmed. It
is thereafter, the decree holder initiated proceedings for executing the
decree and in the process of executing the decree, the property belonging to
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the petitioner has been sold in public auction. The 2nd respondent has
successfully bid for the property at Rs.14,10,000/- and sale was confirmed
on 18.11.2024 and a sale certificate was also issued in favour of the 2nd
respondent.
12.When the petitioner seeks to set aside the sale, invoking Order
XXI Rule 90 of CPC, where the judgment debtor intends to have the sale set
aside and take out an application under Section 90, the judgment debtor has
to satisfy the mandate of Rule 89 first. Rule 89 mandates payment to the
purchaser a sum equal to 5% of the purchase money and also payment to the
decree holder, the amounts specified in the proclamation of sale, less any
amount which may have been received by the decree holder, after the date
of proclamation of sale. If these mandatory conditions are complied, then
the judgment debtor can apply to the Court to set aside the sale, if he is able
to make out any material irregularity or fraud in publishing or conducting
the auction sale.
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13.Order XXI Rule 92 of CPC sets out that sale shall not be set aside
on the ground of irregularity or fraud, unless upon facts proved, the Court is
satisfied that the applicant has sustained substantial injury by reason of such
irregularity or fraud. No such application can be made on any ground which
was available to the judgment debtor and not taken before the proclamation
of sale was drawn up. The explanation to Section 90 also sets out that mere
absence of, or defect in the attachment of the property sold by itself will not
afford a ground for setting aside the sale under Rule 90 of CPC.
14.It is the specific case of the respondents that the petitioner ought to
have complied with the mandate of Rule 89 within a period of 60 days and
having missed the bus, the petitioner is attempting a back door entry, by
filing an application under Section 151 of CPC, seeking permission to
deposit the entire money. This is insofar as the attempt of the petitioner to
set aside the sale on the ground of material irregularity and also collusion
between the decree holder and the auction purchaser.
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15.Insofar the executability of the decree by way of challenge under
Section 47 of CPC, the primordial grounds of challenge are that the
provisions of Societies Act have not been adhered to and the decree itself is
a nullity, having been passed against dead persons. On a perusal of the
orders impugned in these revisions, I find that the trial Court has not
addressed any of the contentions raised by the revision petitioner, either
with regard to the decree being a nullity or the inexecutability of the decree
for violation of mandatory provisions of the Tamil Nadu Societies
Registration Act.
16.The executing Court has also not given any reasons whatsoever for
dismissing the application in E.A.No.6 of 2024, which was filed seeking
permission to deposit the entire amount into Court. The executing Court has
merely extracted the chronological events that led to the filing of the
execution petition and without actually addressing the legal contentions
raised, the applications have been dismissed. In view there of, I have to
independently address the contentions regarding the inexecutability of the
decree.
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17.The main contention, attacking the executability of the decree is
that the provisions of the Tamil Nadu Societies Registration Act, which are
mandatory, have been flouted and in such circumstances, the decree
becomes inexecutable. Under Section 18 of the Tamil Nadu Societies
Registration Act, all property, movable and immovable, belonging to the
Society, vests in the Committee and in any legal proceedings, the property
shall be referred to as the property of the Committee.
18.Under Section 20, the legal proceedings by or against the
registered Society shall be by the Committee or any officer of the registered
Society authorised in such behalf by the bylaws. In the present case,
admittedly, the bylaws initially did not authorise any person to represent the
Society and hence, the Committee alone could sue and be sued insofar as
any legal proceeding against the property of the Society. Section 20(2) of
the Act sets out that any action or legal proceeding shall not abate or be
discontinued by death, resignation or removal from any officer of the
registered Society. This provision, in fact, provides a complete answer for
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the argument of Mr.N.Manoharan that the decree is a nullity, though the suit
was filed by the decree holder against the Society and also the office-bearers
and the trial Court had decreed the suit all of them, the First Appellate Court
reversed the findings of the trial Court and restricted the decree only to the
Society.
19.The Second Appeal as well as the Special Leave Petition,
challenging the said judgment and decree of the First Appellate Court were
dismissed, confirming the decree against the Society. In such circumstances,
applying Section 20(2) of the Act, it is not open to the Society to contend
that the decree passed against the other defendants in the suit would become
a nullity. Therefore, I am unable to accept this part of the submissions of
Mr.N.Manoharan.
20.Coming back to the issue of proper representation of the Society,
there has certainly been a breach of the mandate of Section 20(1) of the Act,
especially when under Section 18 of the Act, the property of the registered
Society itself vests only with the Committee. The Society has not been
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represented by the Committee admittedly and further, Section 21 of the Act
sets out the procedure for enforcing the judgment against an officer
representing the Society and it is only the property of the Society that could
be proceeded against. In other words, there can be no personal decree
against the members of the Society and though the Society was represented
by the Committee or the authorised officer, no personal liability can be
attached as against the Committee members or the officers, who represented
the Society and it would only be the properties of the Society that could be
proceeded against.
21.In the present case, admittedly, the Society has not been
represented by anybody. The 1st defendant is described as a Society running
an Industrial Training Institute and also a Teacher Training Institute at
Tajpura village in Arcot Taluk, Vellore District. The defendants 2 to 5 have
been arrayed in their individual capacity and the allegation in the plaint is
that the 1st defendant Society required funds for starting the Teacher
Training Institute and therefore, on behalf of the 1st defendant Society, the
defendants 2 and 3 and the 5th defendant borrowed monies and executed the
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promissory note. At the same time, the decree holder cannot be found fault
with for proceeding against the property of the Society, since the decree
holder has rightly sought for sale of the property belonging to the judgment
debtor/revision petitioner Society alone and not the officers of the
Committee members. However, the violation of the mandatory requirement
of Section 20(1) of the Act, in my considered opinion, would certainly
render the decree inexecutable.
22.The executing Court has unfortunately not tested any of these
objections raised in the Section 47 petition and has, without any
independent reasoning or conclusion, dismissed the applications. Even with
regard to the petition seeking permission to deposit the monies payable to
the auction purchaser, the Court has simply recorded the fact that in view of
Section 47 petition being dismissed, the permission petition is also
dismissed. The executing Court ought to have independently gone into the
merits and demerits of the application seeking permission to deposit a sum
of Rs.15,00,871/- into Court.
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23.Coming to the decisions that have been relied on by the learned
counsel for the petitioner, in Nani Gopal Paul's case, cited supra, the
Hon'ble Supreme Court held that when there has been illegality in bringing
the properties to sale, such circumstances would be sufficient to vitiate the
validity of the sale, though normally an application under Order XXI Rules
89 and 90 of CPC would have to be filed within limitation to have the sale
conducted by the Court set aside, but when any illegality is brought to the
notice of the Court, the Court of first instance or the Appellate Court need
not remain a mute spectator to the manifest and obvious illegality
committed in conducting the Court sale.
24.In Challamane Huchha Gowda's case, cited supra, the Hon'ble
Supreme Court held that Order XXI Rule 89 of CPC is the only means by
which the judgment debtor can escape from a sale that has been validly
carried out and that the object of the Rule is to provide a last opportunity to
put an end to the dispute at the instance of the judgment debtor, before the
sale is confirmed by the Court, in order to save his property and
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dispossession. The Hon'ble Supreme Court further held that Rule 89 of CPC
does not provide that the application in a particular form shall be filed to set
aside the sale and held that even a memo with a prayer for setting aside the
sale is sufficient to compliance of Rule 89 and ultimately, the Hon'ble
Supreme Court held that there was no bar for the Court in treating the
objection itself as an application for setting aside the sale under Order XXI
Rule 89 of CPC.
25.In Mahboob Khan Vs. S.K.Majid Ussain, reported in AIR 1939 All
241, the Allahabad High Court had held that even presentation of a tender
form shows the intention of the judgment debtor to set aside the sale and
after taking note of the various decisions of the High Courts as well as the
Apex Court, the Hon'ble Court finally held that sale is one of the methods
employed for execution and the purpose of the Rule is to ensure that the
executing proceedings come to an end. However, on facts, the Court found
that within the stipulated period of one month from the date of final bid, the
judgment debtor had paid the decree amount to the decree holder and also
filed a memo for setting aside the sale in the form of objections and there
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had been proper compliance of Rule 89 of Order XXI of CPC in the facts of
that case.
26.In Mangal Prasad's case, cited supra, the Hon'ble Supreme Court
held that an application under Section 47 of CPC cannot be treated as an
application under Order XXI Rule 90 of CPC and merely because a Section
47 application was pending, an application under Order XXI Rule 89 of
CPC was not necessarily barred. The Hon'ble Supreme Court set aside the
auction sale and directed refund of the sale consideration paid to the auction
purchaser, together with interest at 12% per annum, from the deposit of the
said amount, till the date of deposit.
27.This Court in, Uttar Pradesh Cricket Association's case, cited
supra, held that a Society registered either under the Central Act or any
other State Acts is not a juristic person and has to sue or be sued in the name
of any one or more of the office-bearers or trustees in the absence of bylaws,
naming any authorised person to represent the Society in legal proceedings.
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28.Coming to the decisions that have been relied on by the learned
counsel for the respondent, in fact, the learned counsel for the respondent
has also relied on the very same decision of the Hon'ble Supreme Court in
Challamane Huchha Gowda's case, to drive home the point that the only
remedy to escape sale is to comply with Order XXI Rule 89 of CPC.
29.In Ram Karan Gupta's case, cited supra, the Hon'ble Supreme
Court held that Rule 89 of CPC is in the nature of a concession given to the
judgment debtor and therefore, there should be strict compliance of deposit
of 5% of purchase money to the auction purchaser and it is sine qua non to
an application under Order XXI Rule 89 of CPC and that any deposit not
made within 60 days, cannot be entertained.
30.In the light of the above, the legal position that emerges is that if
the judgment debtor wants to set aside the sale, he should necessarily
comply with the mandate of Order XXI Rule 89 of CPC and there can be no
extension of the time lines provided for deposit/payment of the amounts
contemplated in the said Rule.
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31.Mere filing of an application under Section 151 of CPC, within the
period of 60 days, will not get the judgment debtor anywhere as the deposit
itself should have been made within 60 days and the application merely
seeking permission to deposit the money will not amount to compliance of
the mandatory provision of the Order XXI Rule 89 of CPC. However, as
already stated, the discussion with regard to the provisions of Order XXI
Rule 89 of CPC are rendered merely academic, in view of I having already
come to the conclusion that the decree is inexecutable and the Section 47
petition is to be entertained and allowed. However, this discussion has
become necessary, since the other revision in CRP.No.640 of 2025,
challenging E.A.No.6 of 2024, which has been taken out by the revision
petitioner seeking permission to deposit the monies payable to the auction
purchaser.
32.Further even the argument of Mr.N.Manoharan that both the
decree holder as well as the auction purchaser are hand in glove and the fact
that they are represented by the same counsel, can also not be lightly
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brushed aside. In any event, when there is violation of mandatory conditions
of the Tamil Nadu Societies Registration Act, the decree cannot be validly
put to execution as against the registered Society and therefore, the decree
and consequential sale will have to necessarily go. At the same time, though
the application seeking permission to deposit is not maintainable, the
amount paid by the auction purchaser will have to be refunded by the
revision petitioner, if he is genuinely interested to save his property at least
at this point of time. Hence, I am inclined to dispose of the revision
petitions in the manner following:
(i) The Civil Revision Petition No.639 of 2025 is allowed and the
order dated 18.11.2024 in E.A.No.1 of 2023 in E.P.No.60 of 2013 in
V.O.S.No.136 of 2010 on the file of the Sub-Court, Ranipet, is set aside,
subject to clause (iii) hereunder.
(ii) The Civil Revision Petition No.640 of 2025 is dismissed.
(iii) The petitioner shall refund the sale consideration of
Rs.14,10,000/-, together with interest at 12% per annum from 01.09.2023
onwards, till the date of payment. If such payment to the auction purchaser
is made within a period of four weeks from the date of receipt of a copy of
this order, then CRP.No.640 of 2025 shall stand allowed.
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(iv) It is also made clear that in the event of the revision petitioner not
settling the amount due and payable to the auction purchaser, within the said
period of four weeks, then CRP.No.639 of 2025 shall stand dismissed and it
shall be open to the 2nd respondent to proceed in accordance with law to
recover the possession of the property from the revision petitioner. There
shall be no order as to costs. Connected Civil Miscellaneous Petitions are
closed.
07.11.2025
Neutral Citation: Yes/No
Speaking Order/Non-speaking Order
Index : Yes / No
ata
To
The Sub-Court, Ranipet.
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P.B. BALAJI,J.
ata
Pre-delivery order made in
CRP.Nos.639 & 640 of 2025
& CMP.Nos.3870 & 13856 of 2025
07.11.2025
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