Kopparapu Venkata Subbaiah vs Gaddam Brahmam Reddy and Others

S. Dasaradharama Reddy, J.—The question that arises in this revision petition is whether petition u/s 47 of the CPC lies to set aside an auction which was held and confirmed in execution of a decree in the absence of any application under Order 21 Rule 89 of the Code of Civil Procedure. The petitioner decree holder was the highest bidder in the auction of the property held on 11-7-1988 in execution of decree dated 3-3-1987 in O.S.No. 361 of 1986 on the file of Principal District Munsif, Proddutur, obtained against first respondent-judgment debtor and his elder brother in respect of certain transactions carried on for the benefit of joint family of first and second respondents. The first respondent judgment debtor filed E.A.No. 572 of 1989 on 7-11-1989, u/s 47 of the CPC to set aside the sale which was confirmed on 26-9-1988 on the ground that property is not joint family property but belongs to the first respondent and his father-in-law. The lower Court overruling the objection of the decree holder that the judgment debtor having not filed any petition under Order 21 Rule 89 cannot file this petition u/s 47 to set aside the sale, held on merits that the property is not joint family property of the respondents and accordingly allowed the E.A. Challenging this order, the decree holder has preferred this revision petition.

Sri R.V. Nagabhushana Rao, learned counsel for the petitioner, submits that the petition filed u/s 47 is not maintainable since neither claim petition under Order 21 Rule 58 nor petition to set aside the sale under Order 21 Rule 89 was filed. In support of his contention, he relies on a decision of the Supreme Court in Ganpat Singh (Dead) by Lrs. Vs. Kailash Shankar and Others, . He submits that as sale was confirmed, the question of setting aside the same does not arise. On the other hand, Sri M.N. Narasimha Reddy, learned Counsel for the respondents relies on decision of the Supreme Court in Ramanna v. Nallaparaju AIR 1966 SC 86 and a decision of the Himachal Pradesh High Court in Jaunda Ram Vs. Dola Ram and Others, .

Order 21 Rule 89 enables any person claiming interest in the property sought to be sold in execution, to file application to set aside the sale while under Order 21 Rule 90, decree holder or purchaser or any other person entitled to a share in the distribution of assets may apply to the Court to set aside the sale on the ground of any material irregularity or fraud in publishing or conducting it. Section 47 of the CPC reads as follows:

"47. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) Omitted by Amendment Act 1976 w.e.f. 1-2-1977 (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court."

In Ganpat Singh v. Kailash Shankar (1 supra), the facts are as follows: On 2-1-1979, while dismissing an application by one of the judgment debtors under Order 21 Rule 90 the Court confirmed the sale. Another judgment-debtor filed a petition on 27-1-1979 to set aside sale on grounds other than those mentioned in Order 21 Rules 89, 90 and 91 of the Code of Civil Procedure. The same was dismissed by the trial Court on 21-7-1979 on the ground that after confirmation of sale, the Court is not authorised to entertain an application. The Supreme Court on those facts held that there is no provision in the CPC except Order 21 Rules 89, 90 and 91 to set aside the sale and that when an application for setting aside the sale is dismissed, the order of the Court will be final subject to appeal and that when no appeal has been filed another application for setting aside the sale cannot be made, as such an application will be barred by principle of resjudicata. Accordingly, it was held by the Supreme Court that the application of the decree holder for delivery of possession made on 17-7-1980 is barred by limitation under Article 134 of Schedule to Limitation Act since it was made beyond one year from 2-1-1979 when the first application to set aside the sale was dismissed and the sale was confirmed.

The principle of this decision applies to the case on hand where no petition to set aside the sale has been filed at all. Order 21 Rule 92 says that where no application is made under Order 21 Rules 89, 90 or 91 or where such application is made and disallowed, the Court shall make order confirming sale and thereupon the sale shall become absolute. In the instant case, the first limb applies and the decision of Supreme Court fully supports the petitioner.

In Ramanna v. Mallaparaju (2 supra) relied on by the learned counsel for the 1st respondent, the entire property was sold in auction in execution of decree which directed only sale of mortgaged rights of the judgment debtor. The judgment-debtor filed suit u/s 47 of the CPC as it stood before amendment, to set aside the sale. On those facts, it was held by the Supreme Court that the question whether a sale in execution of a decree can be impugned on the ground that it is not warranted by the terms thereof, cannot be agitated by separate suit but only by application u/s 47 and accordingly held that the suit is not maintainable. Treating the suit as an application u/s 47, the Supreme Court held that the application was within time under Article 181 of Schedule to Limitation Act 1908 as it was filed within three years of dispossession and that Article 166 which prescribes period of 30 days to file an application to set aside the sale will not apply as the sale was inoperative and void. This decision is distinguishable since there is no sale in the present case cannot be said to be void and the application filed by the judgment debtor comes within the four corners of Order 21 Rule 89. The next decision relied on by the learned counsel for the 1st respondent is Jaunda Ram v. Dola Ram (3 supra). There the sale was challenged by judgment-debtor''s son by way of separate suit on the ground inter alia that it was ancestral in nature. The Himachal Pradesh High Court held that this question could have been considered by raising objection u/s 47 read with Order 21 Rule 90 and not by separate suit and that the executing Court has jurisdiction to decide the objection petition. This decision is of no help to the respondent as the question whether a petition u/s 47 is maintainable when no application was filed to set aside sale under Order 21 Rules 89 and 90 was neither raised nor decided.

Thus, in view of the above, I hold that the Court below erred in entertaining the petition and allowing it on merits. As I am holding that petition is not maintainable, I need not go into the merits. The Civil revision petition is accordingly allowed with costs.