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CASE NO.: Appeal (civil)  2001 of 2008

PETITIONER: Kancherla Lakshminarayana

RESPONDENT: Mattaparthi Syamala & Ors

DATE OF JUDGMENT: 14/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO 2001 OF 2008 (Arising out of SLP (Civil) No.9102 of 2007)

V.S. SIRPURKAR, J.

1.      Leave granted.

2.      The dismissal judgment of the Madras High Court in Civil  Miscellaneous Appeal under Order 43 Rule 1 of the Code of Civil  Procedure, filed by the appellant herein, is in challenge before us.  This  appeal was filed against the order dated 9.9.2004 passed by Subordinate  Judge, Yanam in Execution Application No.9 of 2003 in Execution Petition  No.15 of 2002.  The said Execution Application was filed under Order XXI  Rule 58 whereby the appellant sought to make a prayer for raising the  attachment on the suit property or in the alternative to declare the sale  being subject to the claim in Original Suit being OS No.31 of 2000.  The  following facts will highlight the controversy. 3.      Second Respondent herein, namely, Mattaparthi Satyam owned 14  acres of land.  He put up the said land for sale and the present appellant  having offered highest market value of Rs.29,000/- per acre, executed an  Agreement of Sale for 14 acres in favour of the appellant on 20th March,  1993 after having received a sum of Rs.1 lakh from the appellant.  The  appellant thereafter paid Rs.2 lakhs on 27.3.1993 and Rs.20,000/- on  16.4.1993 which payments were endorsed on the reverse side of the  Agreement by the Second Respondent.  However, the Second  Respondent failed to execute the registered Sale Deed inspite of several  requests and, therefore, the present appellant filed Original Suit No.605 of  1996 before the Subordinate Judge, Pondicherry for specific performance  of the Sale Agreement which suit was later on transferred to Sub Court,  Yanam and was renumbered as Original Suit No.31 of 2000.  The said suit  is still pending.   4.      In the year 2000, the first respondent, who is none else but the wife  of the second respondent filed a maintenance case being OP No.34 of  2000 before the Family Court, Yanam.  She filed one IA No.582 of 2000  seeking an injunction restraining the second respondent from alienating  the schedule properties  and this application was granted on 17.2.2000.   This petition was also transferred to the Sub Court Yanam and was re- numbered as OS No.63 of 2000.  Thereafter this suit was decreed on  22.1.2002.  Execution Petition No.10 of 2002 came to be filed on the basis  of the decree passed in OS No.63 of 2000 for recovery of arrears of  maintenance payable by the second respondent to the first respondent.   The second respondent did not pay the arrears of maintenance but instead  filed IA No.4 of 2003 in OS No.63 of 2000 before Sub Court, Yanam to set  aside the above decree dated 22.1.2002.  However, even this application  was dismissed on merits on 27.2.2003.  The first respondent thereafter

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filed E.P. No.15 of 2002 before Sub Court, Yanam for execution of the  decree dated 22.1.2002 passed in OS No.63 of 2000.  A public auction  was ordered in that Execution Application and the same was conducted on  2.7.2003 in which public auction the third respondent herein purchased the  said suit property.  The present appellant, therefore, filed a petition in E.P.  No.15 of 2002 in OS No.63 of 2000 under the provisions of Order XXI Rule  58, raising objections to the said auction and to declare that the sale is  subject to the appellant’s claim in OS No.31 of 2000 which was pending on  the file of Sub Court, Yanam.  This application was numbered as Execution  Application No.9 of 2003.  The said application came to be dismissed by  the Subordinate Court.  The appellant herein filed an appeal against the  said order of dismissal dated 9.9.2004.  However, by its order dated  16.3.2007, the High Court of Madras dismissed CMA 3254 of 2004 holding  that the application was not maintainable. The logic of the Madras High  Court as well as the Trial Court seems to be that once the sale takes place  during the execution, then the objection raised would be of no  consequence and the application will be untenable.  The High Court has  thus considered the question of the stage at which the objection could be  raised and has dealt with that such objection would not be tenable on the  backdrop of the language of Clause (a) of proviso to Order XXI Rule 58.   The stress is thus on the stage at which the objection could  be raised (or  the time when the objection is raised). These concurrent orders are now in  challenge before us. 5.      Shri Narasimha, learned counsel appearing on behalf of the  appellant took us through the orders and contended that the view  expressed by both the courts below to the effect that the Execution  Application is not tenable is patently incorrect.  As against this Shri  Vishwanathan, learned counsel appearing on behalf of the first respondent  and Shri Chandrachud, learned counsel appearing on behalf of the third  respondent supported the order contending that in the wake of the  completed auction under Order XXI Rule 58, the High Court and the Trial  Court were justified in holding that the appellant’s claim was not tenable at  all.  It is, therefore, to be seen as to whether the appellant’s claim is  tenable at all.   6.      Learned counsel for the appellant took us through both the orders  and firstly pointed out that the suit by the appellant being OS No.605/96  before Sub Court, Pondicherry which was later on transferred to Sub  Court, Yanam and re-numbered as OS No.31 of 2000 was prior in point of  time.  From that suit it is clear that the first respondent was the wife of the  second respondent. Though she fully knew about the pendency of the  aforementioned suit, not only filed another suit but brought a decree.   According to the appellant it is obvious that the said decree was a collusive  one.  As if this was not sufficient, she also attached the very same property  which was the subject matter of OS No.31 of 2000 and got it sold in a  public auction on 2.7.2003.  It was pointed out that the sale was not  confirmed.  Learned counsel, therefore, pointed out that the appellant not  only had a substantial obligation regarding the property but was rightly  entitled to object to the auction sale.  Thus, the learned counsel urges that  even after the sale the objection to the attachment and the sale could be  raised and more particularly because the present appellant would be  necessarily a person having locus standing due to obligation regarding the  property.  According to the learned counsel these two factors, namely, the  time of taking the objection and the locus of the objector have to be  considered and while the courts below considered only the "time factor" or  the "stage factor", the court did not consider the "locus factor". 7.      As against this a contention was raised by the learned counsel Shri  Vishwanathan that the wife, respondent no.1 herein, had filed OP No.34 of  2000 in Family Court in her individual right as a wife.  She had also  secured the order of injunction restraining the second respondent from  alienating the schedule properties as she was interested in the property  being preserved so that she could recover her maintenance out of that  property and there was nothing wrong in it.  It is pointed out that the  injunction was granted and though there was a publication about the same,  the appellant never raised any objection to it.  The said OP which was  renumbered as OS 63 of 2000 came to be ultimately decreed and there

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was nothing wrong on the part of the first respondent in filing the Execution  Petition No.10 of 2000 for recovery of arrears of maintenance and when  the second respondent did not comply with the orders, she was driven to  file Execution Petition No.15 of 2002 for the sale of the schedule property  by public auction to recover the arrears of maintenance.  He further  claimed that the second respondent had never brought to her knowledge  about OS No.31 of 2000.  Learned counsel, therefore, claimed that there  was no collusion between the first and the second respondent and her  rights of maintenance are independent of any said suit which had arisen 18  years ago when her marriage was solemnized with the second respondent.   Our attention was drawn even to the counter filed by the second  respondent before the Trial Court where the second respondent had  denied the Agreement.  It was alleged by him that the Agreement set up by  the appellant was only by way of security as the appellant had advanced a  sum of Rs.1 lakh to be paid to Mattaparthi Syamala and others on behalf of  the second respondent.  It was pointed out that the second respondent had  flatly denied any such Agreement to Sell.  Learned counsel, therefore,  urged that the courts below were right in holding the application, filed by  the appellant, to be not tenable particularly in view of the completed  auction under Order XXI Rule 58.   8.      Even the learned counsel appearing on behalf of third respondent  urged that he was a bona fide purchaser of the auction held on 2.7.2003  and he was the highest bidder and that he did not know about OS No.31 of  2000 filed by the appellant.  It was his contention that in fact the appellant,  in collusion with the second respondent, had filed an objection to the  Execution.  He pointed out that the third respondent had deposited the  entire bid amount into the court and only the confirmation of sale had  remained to be done. 9.      Shri Narasimha, learned counsel appearing on behalf of the  appellant invited our attention to the language of Order XXI Rule 58 CPC  which is as under: "58.    Adjudication of claims to, or objections to  attachment of property. \026 (1) Where any claim is preferred  to, or any objection is made to the attachment of, any property  attached in execution of a decree on the ground that such  property is not liable to such attachment, the Court shall  proceed to adjudicate upon the claim or objection in  accordance with the provisions herein contained:         Provided that no such claim or objection shall be  entertained \026  (a)     where, before the claim is preferred or objection  is made, the property attached has already been sold;  or  (b)     where the court considers that the claim or  objection was designedly or unnecessarily delayed. (2)     xxxxxx (3)     xxxxxx (4)     xxxxxx (5)     xxxxxx"

It is pointed by the learned counsel from the language of the clause (a) of  proviso to Rule 58(1) that where any objections are taken to the  attachment on the ground that such property is not liable to attachment,  the court has to proceed to adjudicate upon the claim or objections in  accordance with the Rule.  Learned counsel further argues that there is a  rider to this Rule in the shape of a proviso and it is suggested that such  claim or objection need not be entertained where firstly the property  attached has already been "sold".  Learned counsel points out that merely  because of the auction of the suit property, it cannot be said that the said  property is sold, thereby leaving no right in or opportunity with the objector  to object to the attachment.  Learned counsel invited our attention to the  judgment of the Andhra Pradesh High Court in M/s.Magunta Mining Co.  v. M. Kondaramireddy & Another [AIR (1983) A.P. 335] where the  similar situation had arisen on the basis of an application made by the  appellant under Order XXI Rule 58 CPC.  The objector was none else but

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the son of the Judgment-Debtor whose property was auctioned.  The  objection was that since there was a prior lease in respect of the said  property and since in pursuance of that lease the objector-appellant had  been in possession of the same and, therefore, the attachment was not  valid and has to be vacated.  An objection was also raised that the  properties which were attached were already sold and, therefore, the  objection to the attachment and the appeal had become infructuous.  The  Court, therefore, dealt with the effect of the court sale conducted by the  lower court.  It was an admitted position that before the said order of High  Court reached the sale was already completed in respect of all the items  where the Decree-holder himself purchased the properties.  It is also seen  from the facts that there the sale was not confirmed.  The Division Bench,  speaking through Hon’ble Jagannadha Roa, J. (as His Lordship then was)  observed in para 15: "Whenever a claim is preferred under O. 21 R. 58 CPC  against attachment of immovable properties, the fact that the  properties are sold or the sale confirmed will not deprive the  court of its jurisdiction to adjudicate on the claim.  The inquiry  into the claim can be proceeded with by the trial court or the  appellate court (under the amended Code) and in the event of  the claim being allowed, the sale and the confirmation of sale  shall to that extent be treated as a nullity and of no effect, as  the judgment-debtor had no title which could pay to the court  auction-purchaser."

Relying heavily on this case the learned counsel pointed out that there is  no contrary decision of this Court on this issue and, therefore, this decision  has to be held as good law.  In support of the argument that the appellant  had the locus standi, the learned counsel pointed out that it is only during  the pendency of the suit by the appellant which was based on the prior  Agreement of Sale in respect of the suit property that the subsequent suit  for maintenance was filed by the wife and the decree obtained and,  therefore, obviously the judgment-debtor, the second respondent could not  have passed a clean title during the auction sale and it would have to be  held that he could not pass better rights that he himself had.  Learned  counsel urged that the rights which were passed on to the auction  purchaser in the court sale were subject to the Agreement of Sale.  In  support of this proposition the learned counsel relied on the reported  decision in Vannarakkal Kallalathil Sreedharan v. Chandramaath  Balakrishnan & Anr. [(1990) 3 SCC 291] where the situation was more or  the less same.  This Court in para 9 observed: "\005.The agreement for sale indeed creates an obligation  attached to the ownership of property and since the attaching  creditor is entitled to attach only the right, title and interest of  the judgment-debtor, the attachment cannot be free from the  obligations incurred under the contract for sale\005"

This Court had held the decisions by Bombay High Court in Rango  Ramachandra Kulkarni v. Gurlingappa Chinnappa Muthal [AIR 1941  Bom. 198] and Yeshvant Shanker Dunakhe v. Pyaraji Nurji Tamboli  [AIR 1943 Bom 145] and the High Court of Travancore-Cochin in  Kochuponchi Varughese v. Ouseph Lonan [AIR 1952 TC 467], to the  same effect to be the good law. 10.     On the basis of these two judgments, the learned counsel urged that  the objection application in the Execution Petition could not have been,  therefore, thrown away by the Trial Court and the High Court as not being  maintainable.  Considering the law laid down in Magunta Mining’s case  (supra) it must be said that mere holding of the auction does not bar the  objections thereto.  It is our considered opinion that in this case the sale  was not confirmed and that made substantial difference.  The word "sold"  in Clause (a) of the proviso to Rule 58  has to be read meaning thereby a  complete sale including the confirmation of the auction.  That not having  taken place, it cannot be said that the objection by the appellant was not ill- founded or untenable as has been held by the High Court and the Trial  Court.

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11.     However, a contrary view has been taken by the Patna High Court in  a reported decision in Kewal Singh v. Umesh Mishra [AIR 1983 Patna  303] where the Division Bench of the Patna High Court held that the term  "sold" used in proviso (a) means the stage when the property is auctioned  by the court and the bid is accepted by the court.  The term does not refer  to the stage of confirmation of the sale when it is made absolute under  Rule 92.  The learned Judge who was considering the interpretation of the  proviso, after clearing some factual grounds, discussed the issue in para 7  of the judgment.  In coming to the conclusion that the word "sold" would  include the sale under Rule 58, even when it is not made absolute under  Rule 92, the learned Judge has taken into account the term "sold", "sale  set aside" and "sale confirmed and made absolute".  The learned Judge  held that these three terms referred to three stages in relation to the court  sale. While Rule 58 provides for the objection made before the property is  "sold", Rule 64 and onwards provide for the proclamation of sale.  The  learned Judge then took note of two headings, one with respect to the sale  of movable property and the other Rule 82 with respect to the sale of  immovable property.  The learned Judge then proceeded to take note of  Rules 89, 90 and 91.  It was noted by the learned Judge that the  implication of the term "the sale having been made absolute" has been  specifically provided in Section 65 of the Code which provided that where  the immovable property is sold in execution of a decree and such sale has  become absolute, the property shall be deemed to have been vested in the  purchaser from the time when the property is sold and not from the time  when the sale become absolute.  The learned Judge then observed as  under: "Thus, this rule is a pointer to the significance that though the  sale is complete when it is ultimately made absolute but title to  the purchaser vests from the date of the sale.  It may be  noticed, at this place, that there are uses of the two terms  "property sold" and "sale becomes absolute" in this S. 65 and  the two terms used in the same section clearly suggests the  two stages as to the sale having been held and the sale  subsequently made absolute.  But what I have to determine, in  the present case is to find out the meaning of the term ’the  property already sold’ in the proviso to R. 58 mentioned  above.  That term speaks of the ’sale held’ and not ’sale  having been made absolute’ and as the distinction may be  marked the former term used in S. 58 implies that that refers  to the stage when the "sale was held" and not the stage which  would come subsequently when the "sale is made absolute".  I  am supported of this view by two Bench decisions of this  Court and a Bench decision of the Calcutta High Court\005"

The learned Judge then made reference to the decision in Most. Puphup  Dei Kuar v. Ramcharitar Barhi [AIR 1924 Pat. 76] and proceeded to hold  ultimately that: "I am of the view that the term ’property has been already sold’  used in the proviso to Cl. (1) of R.58 refers to the stage when  the sale had taken place and does not refer to the stage when  the sale becomes absolute."

Learned counsel for the respondent very heavily relied on this judgment  and pointed out that the decision in M/s.Magunta Mining Co’s case  (supra) the court had not considered the impact of Section 65 CPC.  It will,  therefore, be our task to decide the correctness or otherwise of both the  judgments. 12.     Reverting back to the judgment of Andhra Pradesh High Court in  M/s.Magunta Mining Co’s case, it will be seen that in para 14 of its  judgment, the learned Judge considered the impact of Order XXI Rule 59.   The learned Judge held: "The provisions of O. 21 Ru.59 CPC show that where before a  claim is preferred or objection made, and the property  attached had already been advertised for sale, the court may,  if the property is immovable, make an order, that pending the

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adjudication of the claim or objection the property shall not be  sold, or that pending such adjudication, the property may be  sold but the sale shall not be confirmed and any such order  may be made subject to such terms and conditions as to  security or otherwise as the court thinks fit. This provision  therefore provides that pending adjudication of a claim in  respect of immovable property the court may proceed with the  sale but stay the confirmation.  Obviously this has been made  with a view to expedite the sale proceedings so that in the  event of the claim being rejected, the further proceedings can  go on expeditiously.  But it is clear that as long as the sale is  not confirmed the status quo ante can be restored in case the  claim is allowed.  It has been held that once the claim petition  is allowed the sale will be treated as void because the interest  of the judgment-debtor that was sold did not in fact belong to  him and the Court auction-purchaser would not get any title to  the property as the judgment-debtor had no interest therein  and because the claimant continues to retain his interest in  those properties vide Bibi Umatul Rasul v. Lakho Kuer [AIR  (1941] Patna 405].  To the same effect is the decision in  Madholal v. Gajrabi [AIR (1951) Nag. 194]."   "The term of O.21 R.63 are imperative and they declare that  any order passed by the executing Court is subject to the  result of such a suit.  In Phul Kumari v. Ghanshyam Misra,  (1907) ILR 35 Cal 202: (35 Ind App 22 (PC) their Lordships of  the Privy Council pointed out that the object of a suit under  S.283, Civil P.C. of 1882 which corresponds to O. 21 R. 63 of  the present Code is in effect to set aside a summary decision.   When the claimant succeeds in getting a decree in his favour  declaring his title to the property attached and that the  property is not liable for attachment and sale in execution of a  particular decree the executing court’s power to sell the  property in that execution proceedings must cease.  The  claimant’s success in a suit under O. 21 R. 63 ousts the  jurisdiction of the executing court.  If that is the result, the sale  must be pronounced to be a nullity and consequently not  capable of being confirmed under O. 21, R. 92, Civil P.C."

These observations will show that the Andhra Pradesh High Court not only  considered the language of Rule 59 and the impact thereof as clearly  displayed but also went on to consider the fact of the prior obligation  regarding the objector in the property and the fact that even if the sale is  effected under Rule 58, it cannot obliterate the claims of the objectors  which were created prior to the sale.  This very situation with regard to  impact of the prior interest in the shape of Agreement of Sale was taken  into consideration in the subsequent judgment of Vannarakkal Kallalthil  Sreedharan (cited supra) wherein the judgments of the Bombay High  Court and the Travancore-Cochin High Courts were approved.  Thus in  considering the "time factor" of challenging the sale, the judgment also  considers the "locus standi factor" on account of any prior interest of the  objector in the suit property.  This situation is very conspicuously absent in  the judgment of the Patna High Court which has merely chosen to go by  the language of Section 65 CPC.  We must hasten to add that even if  under Section 65 CPC, the title "after the sale has been made absolute  under Rule 92" relates back to the date of sale, it would still be subject to  the earlier rights of the objector and his interest in the suit property.   Therefore, in our opinion Section 65 would not, by itself, provide any  guidance regarding the interpretation of the term "sold" in the said proviso.   Once it is held, as has been confirmed by this Court in Vannarakkal  Kallalathil Sreedharan’s case that the attachment cannot be free from  the obligations under the contract of sale, then the necessary sequatur  must follow that even after the factum of sale the objection would still lie  before the sale is made absolute.  In our opinion, therefore, the law laid  down by the Andhra Pradesh High Court in M/s.Magunta Mining Co’s  case  is preferable to the law laid down by the Patna High Court in Kewal

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Singh’s case.   13.     We have examined the relied on judgments of the Patna High Court  reported in Janki Mohan & Anr. V. Dr. S. Samaddar & Ors. [AIR 1962  Patna 403] where the High Court relied on the judgments of the Calcutta  High Court in Sasthi Charan Biswan Banik & Ors. V. Gopal Chandra  Saha & Ors. [AIR 1937 Cal 390]  as also judgment of Patna High Court in  Mt.Puhupdei Kuar v. Ramcharitar Barhi & Ors. [AIR 1924 Patna 76].   However, since we have taken a view that the judgment of the Andhra  Pradesh High Court is correct, those judgments would have to be held as  not laying down a good law.  A contrary view has been taken by Madras  High Court in C. Jagannadhan v. Padayya [AIR 1931 Mad 782]  which  supports the view of Andhra Pradesh Judgment.  We approve of that view. 14.     Again, it cannot be said that the present appellant has no locus  standi to raise an objection to the sale for the simple reason that he had  filed a suit on the basis of an Agreement of Sale.  The factum of the  Agreement of Sale was not denied by the second respondent.  Therefore,  whether the Agreement of Sale was a good Agreement of Sale entitling the  appellant for specific performance on the basis of that agreement is  essentially a question to be decided subsequently in the suit (though the  suit is earlier to the suit filed by the first respondent).  Under such  circumstances there was a cloud on the property and a person like  appellant who had the obligation qua the property in the shape of an  Agreement of Sale could not be held to be an utter outsider having no  locus standi to take the objections.  This is the import of the  aforementioned decision in Vannarakkal Kallalthil Sreedharan’s case.   To the same effect is the judgment in Purna Chandra Basak v. Daulat Ali  Mollah [AIR 1973 Cal. 432] where the learned Single Judge of that Court  has held: "An attaching creditor can only attach the right, title and  interest of his debtor at the date of the attachment and on  principle, his attachment cannot confer upon him any higher  right than the judgment-debtor had at the date of the  attachment.  If a person, having a contract of sale in his  favour, has such pre-existing right the attachment could not be  binding upon him.  If the promise get a conveyance, after the  attachment, in pursuance of his contract, he takes a good tile  inspite of the attachment. "

The observations would only highlight the importance of the Agreement of  Sale which is prior in time of the attachment as also the unconfirmed sale. 15.     Learned counsel also points out the observations of this Court in  Desh Bandu Gupta v. N.L. Anand & Rajinder Singh [(1994) 1 SCC 131]  in paragraph 5 which are to the following effect: "The auction-purchaser gets a right only on confirmation of  sale and till then his right is nebulous and has only right to  consideration for confirmation of sale.  If the sale is set aside,  part from the auction-purchaser, the decree holder is affected  since the realisation of his decree debt is put off and he would  be obligated to initiate execution proceedings afresh to  recover the decree debt." (Emphasis supplied)

From this the learned counsel contended that since in this case the sale  had remained to be confirmed, there was no question of holding the  appellant to be an utter outsider or throwing his application  as untenable. 16.     It was urged before the High Court that the provisions of Order XXI  Rule 58 read with the provisions of Order 22 Rule 101 spells out the duty  of the court to adjudicate all the questions relating to the rights of the  parties and that the Executing Court had failed to consider the provisions  in the proper perspective and it should have decided as to whether the  decree between the first and second respondents is a collusive decree  merely meant to defeat the right of the appellant herein.  The  aforementioned proviso to Rule 58 and more particularly Clause (a) thereof  was the only provision relied upon by the High Court which is clear from  the observations made in internal page 10 of the judgment of the High  Court in the following words:

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"Clause 5 of Order 21 Rule 58 CPC deals with a situation  where the claim or objection under the proviso to sub-rule (1)  is refused to be entertained by the court, the party against  whom such order is made may dispute, but, subject to the  result of such suit, if any, an order so refusing to entertain the  claim or objection shall be conclusive.  The highest bidder in  the auction sale has been declared as the purchaser and that  therefore, the proviso to Order 21 Rule 58 CPC is attracted."

We have already shown that this is not the situation in law. The High Court  further went on to suggest that a merely Agreement holder could not  prevent the right of the auction-purchaser to get the sale confirmed.  This  statement is also patently incorrect statement in law.  We have, therefore,  no hesitation in holding that the High Court and the Trial Court were in  utter error in relying on proviso to Clause (a) to Rule 58 of Order XXI CPC.   The appeal has, therefore, to succeed. The Executing Court thus shall be  obliged to decide the objections raised by the appellant. 17.     In the above circumstances the appeal is allowed.  However, in the  facts and circumstances of the case, there will be no order as to costs.