Smt. Jyotsana vs M/S. Hriday Credit Cooperative Society ...
2026 Latest Caselaw 5433 Raj

Rajasthan High Court - Jodhpur

Smt. Jyotsana vs M/S. Hriday Credit Cooperative Society ... on 9 April, 2026

[2026:RJ-JD:16858]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 6723/2026

Smt. Jyotsana W/o Late Shri Mukesh, Aged About 53 Years,
Resident Of 14, R.k. Puram, Titardi, Udaipur.
                                                                       ----Petitioner
                                      Versus
1.       M/s. Hriday Credit Cooperative Society, Through Manager,
         11-B, Vinayak Complex, Durga Nursery Road, Udaipur.
2.       Mukesh      S/o     Shri     Shanti       Lal,     Through      His    Legal
         Representatives -
3.       Devesh S/o Late Shri Mukesh, Resident Of Village Pula,
         Tehsil Badgaon, District Udaipur.
4.       Priyanka D/o Late Shri Mukesh W/o Kaustubh, Resident
         Of Village Pula, Tehsil Badgaon, District Udaipur.
5.       Shanti Lal S/o Shri Vardichand, Resident Of 14, R.k.
         Puram, Titardi, Udaipur.
6.       Kamal S/o Shri Shanti Lal, Resident Of 13, Anand Vihar,
         Sector No. 4, Hiran Magri, Udaipur.
7.       Smt. Kaushalya W/o Shri Kamal Suhalka, Resident Of 13,
         Anand Vihar, Sector No. 4, Hiran Magri, Udaipur.
8.       Dehli Wale Real State, Through Anil Wadhwani.
                                                                   ----Respondents


For Petitioner(s)           :     Mr. Sanjeev Johari, Sr. Adv. With
                                  Mr. Om Prakash Kumavat &
                                  Mr. Hardik Kachhawa
For Respondent(s)           :     Mr. James Bedi through V.C.,
                                  Mr. Tanay Sharma & Mr. Arpit Saxena
                                  for respondent No. 1
                                  Dr. Mohit Singhvi for respondent No.
                                  6



          HON'BLE MR. JUSTICE MUKESH RAJPUROHIT

Order

09/04/2026 The present writ petition under Article 227 of the

Constitution of India has been preferred by the petitioner assailing

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the order dated 13.03.2026 passed by the learned Commercial

Court, Udaipur in Civil Execution Case No.166/2020, whereby the

application filed by the petitioner under Order XXI Rules 85, 86

and 87 CPC has been rejected.

The factual matrix, in brief, as set out in the writ petition is

that an ex parte arbitral award dated 19.01.2019 came to be

passed against the petitioner and respondent nos. 2 to 4,

pursuant to which execution proceedings were initiated by the

respondent no.1-decree-holder. On 11.05.2023, the petitioner

instituted proceedings under section 34 of the Arbitration and

Conciliation Act, 1996 along with an application under section 5 of

the Limitation act, seeking to set aside the ex parte arbitral award,

however, the learned Commercial Court, Udaipur dismissed the

petitioner's petition on the ground of Limitation. Thereafter, the

petitioner preferred an appeal before this Court which came to be

registered as D.B. Civil Misc. Appeal No. 949/2024, in which, the

learned Division Bench of this Court while issuing notice to the

respondent no. 1, granted interim stay on the interest component

of the impugned order dated 21.02.2024. The order dated

22.03.2024 is reproduced hereinunder as:

"1. Heard learned counsel for the appellant.

2. Issue notice to the respondent no. 1 only, returnable on 15.04.2024.

3. In the meanwhile, the interest component of the impugned order dated 21.02.2024 passed by learned Commercial Court, Udaipur shall remain stayed."

The said appeal was dismissed by learned Division Bench of

this Court on 21.01.2026. Moreover, in the course of execution,

the subject property was put to auction on 03.04.2024 and

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respondent No.6 was declared the successful auction purchaser

upon depositing 25% of the bid amount on the date of auction.

The controversy in the present writ petition revolves around the

alleged failure of the auction purchaser to deposit the remaining

75% of the sale consideration within the period prescribed under

Order XXI Rule 85 CPC.

It is not in dispute that prior to filing the application under

Order XXI Rules 85, 86 and 87 CPC, the petitioner had also

challenged the auction proceedings by filing objections on

16.02.2026 under Order XXI Rules 90, 92 and 93 read with

Section 47 CPC, inter alia, on the grounds of alleged material

irregularity in the conduct of the auction, lack of notice,

undervaluation and resulting prejudice. Thereafter, the petitioner

filed a separate application dated 06.03.2026 under Order XXI

Rules 85, 86 and 87 CPC seeking annulment of the auction on the

ground that the balance sale consideration had not been deposited

within 15 days from the date of auction.

Learned Senior Counsel for the petitioner has vehemently

contended that the requirement under Order XXI Rule 85 CPC is

mandatory and admits of no relaxation. It is submitted that once

the balance 75% was not deposited within 15 days from the date

of auction i.e. 03.04.2024, the consequences under Order XXI

Rule 86 CPC automatically followed and the learned Executing

Court had no discretion to validate the sale. It is further urged

that the subsequent deposit made in February, 2026 could not

cure the initial statutory default, and that the application under

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Order XXI Rules 85, 86 and 87 CPC was independent of the earlier

objections under Order XXI Rules 90, 92 and 93 CPC.

Learned Senior Counsel has relied upon the judgments

passed by the Hon'ble Supreme Court to contend that failure to

deposit 75% of the bid amount within the prescribed time renders

the auction invalid under Order XXI Rules 84 and 85 of the CPC:

• Manilal Mohanlal Shah & Ors vs. Sardar Sayed Ahmed Sayed Mahmad & Anr.; 1954 AIR 349

• Gas Point Petroleum India Limited vs. Rajendra Marothi & Ors.; (2023) 6 SCC 391

Per contra, learned counsel for the respondent no.1 has filed

his reply wherein while opposing the present writ petition he has

submitted that the petitioner has not approached this Court with

clean hands and has suppressed material facts. It is pointed out

that the petitioner herself had filed an application before the

learned Executing Court on 04.04.2024 asserting that the

execution proceedings stood stayed pursuant to the order passed

by this Court on 22.03.2024, and on the basis of such

representation, the learned Executing Court stayed the execution

proceedings. It is further stated that the respondent no. 6

submitted applications dated 09.05.2024 and 04.12.2024 before

the learned Executing Court seeking permission to deposit the

remaining 75% of the amount, however, the petitioner reiterated

the said stand of interim order granted by the learned Division

Bench of this Court in her reply dated 16.12.2024, thereby

contributed to the delay in depositing of the balance amount. The

relevant portion of the reply is stated hereinunder as:

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"...ऐसी स्थिति में माननीय राजस्थान उच्च न्यायालय द्वारा इन तथ्यों को ध्यान में रख कर ही इस बिन्दु पर दिनां क 22.03.2024 को स्थगन आदे श पारित किया है , जिसका बोली दाता द्वारा अर्थ का अनर्थ बना दिया गया है और यह वर्णित किया जा रहा है कि केवल ब्याज की राशि के सम्बन्ध में आदे श दिया गया है , जबकि माननीय राजस्थान उच्च न्यायालय का आदे श पू र्ण तया स्पष्ट है । ऐसी स्थिति में कोई अग्रिम कार्यवाही किया जानः सम्भव नही ं है ।

अतः प्रार्थना है कि बोली द्वारा प्रस्तु त प्रार्थना पत्र माननीय राजस्थान उच्च न्यायालय के आदे श की अनुपालना में इसी स्तर पर खारिज किए जाने का आदे श प्रदान फरमावे ।"

It is thus contended that the petitioner cannot now be

permitted to take a contrary stand and invoke the rigour of Order

XXI Rule 85 CPC. It is also submitted that after dismissal of the

appeal by this Court on 21.01.2026, the execution proceedings

were revived and the learned Executing Court granted time to the

auction purchaser to deposit the balance amount, which has been

duly complied with.

Learned counsel while relying upon the judgement passed by

a co-ordinate bench of this Court has stated that the petitioner

has not approached this Court with clean hands and has

suppressed material facts, therefore, the present writ petition

deserves to be dismissed.

• Heera Lal Saini & Anr. vs. State of Rajasthan & Ors.; S.B. Civil Writ Petition No. 19073/2024

Learned counsel for respondent no. 6, while opposing the

present writ petition, submitted that the learned trial Court, vide

order dated 13.03.2026, has dismissed the applications filed by

the petitioner under Section 5 of the Limitation Act read with

Order XXI Rules 90, 92, and 93 along with Section 47 of the Code

of Civil Procedure (CPC). Furthermore, the learned trial Court also

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dismissed the application filed under Order XXI Rules 85, 86, and

87 CPC.

It was further submitted that respondent no. 6 has filed an

application dated 27.03.2026 stating that the demand draft (DD)

for the remaining amount was deposited on 17.02.2026. However,

due to a clerical error in the DD and closure of banking hours, the

learned trial Court directed that the same be deposited on

18.02.2026. Accordingly, it has been prayed that the said deposit

be treated as having been made on 17.02.2026.

Heard and considered the submissions advanced by the

learned counsels for the parties and perused the material on

record.

Before proceeding further, it would be appropriate to

reproduce the relevant provisions of Order XXI for ready

reference:

"85. Time for payment in full of purchase money.--The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property: Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.

86. Procedure in default of payment.--In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.

87. Notification on re-sale.--Every re-sale of immovable property, in default of payment of the purchase-money within the period allowed for such payment, shall be made after the issue of fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

[90. Application to set aside sale on ground of irregularity or fraud.

--(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside

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the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation.--The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.

92. Sale when to become absolute or be set aside.--(1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute:

Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection. (2) Where such application is made and allowed, and where, in the case of an application-under rule 89, the deposit required by that rule is made within [sixty days] from the date of sale, [or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby: [Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002. (3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made. [(4) Where a third party challenges the judgment-debtor's title by filing a suit against the auctionpurchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered.

93. Return of purchaser-money in certain cases.--Where a sale of immovable property is set aside under rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid."

At the outset, it deserves to be noticed that the petitioner

had already availed the remedy of challenging the auction

proceedings by filing objections under Order XXI Rules 90, 92 and

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93 CPC. The said provisions specifically deal with setting aside of

sale on grounds of material irregularity or fraud in publishing or

conducting the sale and the consequential injury. The petitioner

raised all possible grounds relating to the validity of the auction,

including lack of notice, undervaluation and prejudice. The

petitioner, thereafter chose to file a fresh application under Order

XXI Rules 85, 86 and 87 CPC seeking to invalidate the very same

auction on a different ground.

Though it is correct that the grounds under Order XXI Rules

85 and 86 CPC operate in a distinct field, in the facts of the

present case, the successive invocation of different provisions to

assail the same auction proceedings cannot be viewed in isolation

from the conduct of the petitioner. The record clearly indicates

that the petitioner has been consistently attempting to obstruct

the execution proceedings by adopting different procedural routes

after having failed in earlier challenges.

More importantly, the conduct of the petitioner in the present

case assumes significance. Immediately after the auction dated

03.04.2024, the petitioner approached the learned Executing

Court by way of an application dated 04.04.2024 asserting that

the execution proceedings stood stayed pursuant to the order

passed by this Court. Acting upon such representation, the

learned Executing Court stayed further proceedings. The petitioner

thereafter reiterated the same in her reply dated 16.12.2024 to

the application filed by the auction purchaser. Having taken such a

stand before the learned Executing Court and having contributed

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to the continuation of the stay of proceedings, the petitioner

cannot now be permitted to turn around and contend that the

statutory period under Order XXI Rule 85 CPC continued to run

unaffected.

The co-ordinate bench of this Court in the case of Heera Lal

(Supra) while stating that the petitioner must disclose all material

facts truthfully and completely has held that:

"11.The High Court functions not only as a court of law but also as a court of equity. Therefore, anyone seeking equitable relief under Article 226 of the Constitution is obligated to present all relevant facts before the Court fully and truthfully. The foremost condition for invoking the extraordinary jurisdiction of a Constitutional Court is that the petitioner must approach the Court with clean hands. Concealment or falsehood disqualifies a party not only from seeking equitable relief but also from being heard on the merits of the case. The foundation of writ jurisdiction lies in the disclosure of true, complete, and accurate facts. It is a well-established principle that if essential facts are suppressed, misrepresented, or presented dishonestly, the effective functioning of writ courts would be undermined. Consequently, if a litigant fails to make full disclosure or attempts to mislead the Court, the Court is justified in dismissing the petition without examining its merits. This rule has been developed in the larger public interest to prevent unscrupulous litigants from misusing the judicial process through deception.

11.1 This view finds support from the various judgments delivered by the Hon'ble Apex Court denying indulgence to a party not approaching the Court with clean hands.

The Hon'ble Apex Court in the case of Dalip Singh v. State of U.P., (2010) 2 SCC 114 has held as under :-

"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa"(non- violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of thejustice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the

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challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."

In the case of Tomorrow land Ltd. v. Housing & Urban Development Corpn. Ltd., (2025) 4 SCC 19, the Hon'ble Supreme Court observed as under :-

"55. The material on record sufficiently indicates that the appellant did not approach the Court with clean hands and instead attempted to hoodwink the judicial process by creating a facade to subterfuge their inability to meet their contractual obligations. We are constrained to observe that the intent of the appellant throughout appears to be that of prolonging the litigation to cloak its impecuniousness.

56. It needs no emphasis that whosoever comes to the court claiming equity, must come with clean hands. The expression "clean hands" connotes that the suitor or the defendant have not concealed material facts from the court and there is no attempt by them to secure illegitimate gains. Any contrary conduct must warrant turning down relief to such a party, owing to it not acting in good faith and beguiling the court with a view to secure undue gain. A court of law cannot be the abettor of inequity by siding with the party approaching it with unclean hands. This also brings to mind the oft-quoted legal maxim--he who seeks equity must do equity."

Similarly, in a recent case i.e. Auroville Foundation v. Natasha Storey, 2025 SCC OnLine SC 556, the Hon'ble Supreme Court has emphasized adherence to the doctrine of "clean hands" in following terms :-

"9.It is no more res integra that the Doctrine of "Clean hands and non-suppression of material facts" is applicable with full force to every proceedings before any judicial forum. The party invoking extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and disclose all correct and material facts in his Writ Petition. If it is brought to the notice of the Court that the petition has been guilty of suppression of material and relevant facts or has not come with clean hands,such conduct must be seriously viewed by the courts as the abuse of process of law and the petition must bed is missed on that ground alone without entering in to the merits of the matter."

12.Considering the facts of the present case, it is clear that the concealment on the part of the petitioners is apparent on the face of the record and is writ large. The petitioners have not disclosed the factum of reminder notices being issued by the respondent -Gram Panchayat and also the fact regarding challenge given to the eviction notices given by the petitioners by way of civil suit. The petitioners have also not mentioned the fact regarding rejection of the application filed under Order XXXIX Rule 1 and 2 of C.P.C. as well as dismissal of the appeal filed against said order.

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Apart from the said concealment, the petitioners have patently made false statement that under the assurance of the respondent - Gram Panchayat, they have vacated the shops in question and while considering the same as a voluntary and bonafide vacation of shops by the petitioners, this Court has granted interim relief in favour of the petitioners. However, the record reveals that the possession of the shops in question was to be taken with the help of police authorities.

Apart from the said concealment, it is also borne out from the record of the case that the petitioners played clear mischief by participating in the earlier auction proceedings and not submitting the bid amount in spite of being declared as highest bidders, just with a view to frustrate the first auction proceedings. Said fact shave not been voluntarily disclosed by the petitioners. Subsequent bid proceedings are challenged by the petitioners, which have been stayed by this Court while relying upon the false averments made in the writ petition. The cancellation of earlier bid proceedings where the petitioners themselves have submitted respective bid of rent to the tune of Rs. 21,900/- (for Shop No.A-4) and Rs.20,600/- (for Shop No. A-2), has caused financial losses to the respondent - Gram Panchayat. This Court strongly deprecates and condemns such dubious and unscrupulous practices adopted by the petitioners. By engaging in conduct that amounts to a clear abuse of the process of law, the petitioners have not only caused financial loss to the Gram Panchayat but have also sought to misuse the judicial machinery for ulterior purposes. In view of their conduct, this Court finds it appropriate to saddle the petitioners with costs, so as to deter them and others from indulging in similar misuse of legal proceedings in the future. 12.1 The Hon'ble Apex Court in the case of V. Chandrasekaranand Anr. Vs. Administrative Officer and Ors. reported in(2012) 12 SCC 133, while dealing with similar circumstanced action has held as under :-

"44. The appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a court of equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim jure naturae aequumest neminem cum alterius detrimento et injuria fierilocupletiorem, means that it is a law of nature that oneshould not be enriched by causing loss or injury to another. (Vide Ramjas Foundation v. Union of India [MANU/SC/0117/1993 : 1992:INSC:308 : 1993 Supp(2) SCC 20 : AIR 1993 SC 852], Noorduddin v. K.L.Anand [MANU/SC/0533/1995 : 1994:INSC:452 :

(1995) 1 SCC 242] and Ramniklal N. Bhutta v. State ofMaharashtra [MANU/SC/0279/1997 : 1996: INSC:1337: (1997) 1 SCC 134 : AIR 1997 SC 1236].)

45. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the Court."

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13.In view of the discussion made above, looking to the conduct of the petitioners in the light of the law laid down by the Hon'ble Apex Court, the present writ petition is dismissed with a cost of Rs. 25,000/- to be deposited by each of the petitioners with the Rajasthan State Legal Services Authority, Jaipur, within 15 days from the date of this order. The receipt of such deposit be submitted with the Registry, to be tagged with the File.

It is clear that once the execution proceedings themselves

stood stayed, the consequential acts in furtherance of such

proceedings, including deposit of the balance sale consideration,

could not have been insisted upon. The statutory timeline under

Order XXI Rule 85 CPC cannot be applied in a vacuum, ignoring

the effect of judicial orders staying the proceedings. The learned

Executing Court has, therefore, rightly treated the period during

which the proceedings remained stayed as incapable of being

reckoned for the purposes of computing the limitation under Rule

85.

After dismissal of the appeal by this Court on 21.01.2026,

the execution proceedings were restored and the learned

Executing Court, by order dated 02.02.2026 and subsequent order

dated 10.02.2026, granted time to the auction purchaser to

deposit the balance sale consideration. The record reflects that the

auction purchaser prepared the demand draft on 17.02.2026 and

tendered the same before the Court, and the amount was

deposited on the next working day i.e. 18.02.2026. The

explanation furnished regarding closure of banking hours has been

accepted by the learned Executing Court. In the facts and

circumstances of the case, such acceptance cannot be said to be

arbitrary, perverse or beyond jurisdiction.

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The contention of the petitioner while relying upon the

judgement passed by the Hon'ble Apex Court in the case of

Manilal (supra) & Gas Point (supra) that the provisions of

Order XXI Rule 85 CPC are mandatory in nature is not in dispute.

However, the applicability of such provision must be tested in the

factual context of each case. In the present case, the delay in

deposit cannot be viewed distinct from the fact that the execution

proceedings themselves remained stayed on account of the stand

taken by the petitioner. The petitioner cannot be permitted to take

advantage of a situation which she herself contributed to.

It is also pertinent to note that the petitioner did not raise

any effective objection at the stage when the auction purchaser

moved applications seeking permission to deposit the balance

amount and chose to agitate the issue only after dismissal of her

appeal against the arbitral award. The plea raised in the present

writ petition, therefore, appears to be an afterthought of the

petitioner.

The jurisdiction of this Court under Article 227 is supervisory

and is not meant to re-appreciate facts or to interfere with

discretionary orders unless the same are shown to be perverse or

without jurisdiction. In the present case, no such ground is made

out.

In the present case, the learned Executing Court has taken

into consideration all relevant aspects, including the effect of the

stay of execution proceedings, the conduct of the parties, and the

subsequent compliance by the auction purchaser. The view taken

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by the learned Executing Court is a plausible view based on the

material available on record and does not suffer from any illegality

or perversity warranting interference by this Court.

In view of the above, the writ petition being devoid of merit

is dismissed.

All pending applications, if any, also stand disposed of.

No order as to costs.

(MUKESH RAJPUROHIT),J 67-/Jitender//-

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