# ·B DESH BANDHU GUPTA v. N L. ANANp AND RAJINDER SINGH

- **Citation:** [1993] Supp. 2 S.C.R. 346
- **Court:** Supreme Court of India
- **Decided:** 1993-09-17
- **Case number:** Civil Appeal No. 2692 of 1984
- **Bench:** K. Ramaswamy, R.M. Sahai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-desh-bandhu-gupta-v-n-l-ananp-and-rajinder-singh-12183
- **Pages:** 23

## Headnote

Civil Procedure Code, 1908: Order 21 Rules 66, 67 and 54 ( 1-A)---Sale
of property in satisfaction of Court decree-Service of notice on judgmentdebtor mandatory-Sale proclamation-Furnishing relevant and material parC ticulars-Need for---Court to apply its mind-Obligation of Court to state
valuation given by both the parties-In the absence of notice failure on the
part of judgment-Debtor would not preclude him from raising objections after
sale.
Section 47, Order 21 Rules 90, 17 (4), 64, 66 (2) and Appendix E, Fann
D 27-Extent of property to be sold in execution-Should be only to such an
extent as to satisfy the decree Court to apply its mind-Non-application of
mind a material irregularity-Would vitiate sale-But not mere irregularity.
Order 21 Rules 1 (1) and 23 (2)-Mode of payment of decretal
E money-Arrears of rent deposited by tenant-Decretal amount not
deposited-Executing Court could direct the withdrawal of rent and deposit
the same towards decretal amount-Or consider tenant's objection and pass
an order under Rule 23 (2)-<Jmission to consider objections raised by
judgment debto~Whether appealable.
F
Order 21 Rule JO-Jurisdiction of Executing Court-Value of property
sold at the execution-Not detenninative of-Where decree in execution is
within its jurisdiction-Executing Court has jurisdiction.
Section 47-0rder 21 Rule 90-Application for setting aside execution
G sale-Necessary parties-Who are-lmpleading all joint purchasers-Whether
necessary.
Appellant judgment-debtor was a tenant. The landlady applied for
bis eviction for default in payment of rent. She sold the property to the
first respondent who got himself impleaded in the eviction proceedings and
H also independently sought eviction of the appellant. During the pendency
346
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D.B. GUPTA v. N.L. ANAND
347
of the proceedings appellant deposited rent to the extent of Rs. 13,440 in A
the name of the landlady. The decree for eviction made against the tenant
was confirmed by this Court. The suit of the first respondent for the
arrears of rent was decreed for a sum of Rs. 6,419.98.
Appellant filed a Writ Petition and the High Court directed that the
amount deposited by the appellant be credited to the account of the first
respondent. An execution petition was filed by the first respondent for sale
of a plot belonging to the appellant, and a warrant of attachment was
issued. Appellant filed an objection petition claiming that since he had
already deposited more than the decretal amount, the decree stood satisfied and became inexecutable. He also challenged the jurisdiction of the
Execution Court. The Court passed an order for sale of the property.
Admittedly, the appellant was neither given notice nor was he present; nor
was he aware of the order. Sale warrant was issued and in the imction held,
the said plot was sold to the second respondent and his wife for a sum of
Rs. 1,05,000.
On coming to know of the sale, appellant filed a petition challenging
the sale on the grounds that it was collusive and fraudulent; that the price
was inadequate; that there was no notice issued to him and that there was
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no sale proclamation. The application was rejected and the sale was
confirmed hy the trial court. The appeal preferred by the appellant was E
dismissed by the appellate court. The revision petition was dismissed in
limine by the High Court. Hence this appeal.
Allowing the appeal, this Court
HELD : 1.1. Under Order 21 Rule 10 of Civil Procedure Code an F
application for execution should be made to the court ''which passed the
decree". Therefore, even if the value of the property sold at the execution
is more than Rs. 25,000 it does not take away the jurisdiction of the trial
court. Admittedly the decree in execution for Rs. 7,780.33 is within the
jurisdiction of the trial court, which passed the decree. [345-F-G]
G
Banwar Lal v. Smt. Prem Lata, A.I.R. (1990) S.C. 623, relied on.
1.2. By amending rule 1(1) of Order 21 C.P.C. in 1976 a right has
been given to the judgment-deb

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A
·B
DESH BANDHU GUPTA
v.
N L. ANANp AND RAJINDER SINGH
SEPTEMBER 17, 1993
[K. RAMASWAMY AND R.M. SAHAI, JJ.]
Civil Procedure Code, 1908: Order 21 Rules 66, 67 and 54 ( 1-A)---Sale
of property in satisfaction of Court decree-Service of notice on judgmentdebtor mandatory-Sale proclamation-Furnishing relevant and material parC ticulars-Need for---Court to apply its mind-Obligation of Court to state
valuation given by both the parties-In the absence of notice failure on the
part of judgment-Debtor would not preclude him from raising objections after
sale.
Section 47, Order 21 Rules 90, 17 (4), 64, 66 (2) and Appendix E, Fann
D 27-Extent of property to be sold in execution-Should be only to such an
extent as to satisfy the decree Court to apply its mind-Non-application of
mind a material irregularity-Would vitiate sale-But not mere irregularity.
Order 21 Rules 1 (1) and 23 (2)-Mode of payment of decretal
E money-Arrears of rent deposited by tenant-Decretal amount not
deposited-Executing Court could direct the withdrawal of rent and deposit
the same towards decretal amount-Or consider tenant's objection and pass
an order under Rule 23 (2)-<Jmission to consider objections raised by
judgment debto~Whether appealable.
F
Order 21 Rule JO-Jurisdiction of Executing Court-Value of property
sold at the execution-Not detenninative of-Where decree in execution is
within its jurisdiction-Executing Court has jurisdiction.
Section 47-0rder 21 Rule 90-Application for setting aside execution
G sale-Necessary parties-Who are-lmpleading all joint purchasers-Whether
necessary.
Appellant judgment-debtor was a tenant. The landlady applied for
bis eviction for default in payment of rent. She sold the property to the
first respondent who got himself impleaded in the eviction proceedings and
H also independently sought eviction of the appellant. During the pendency
346
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D.B. GUPTA v. N.L. ANAND
347
of the proceedings appellant deposited rent to the extent of Rs. 13,440 in A
the name of the landlady. The decree for eviction made against the tenant
was confirmed by this Court. The suit of the first respondent for the
arrears of rent was decreed for a sum of Rs. 6,419.98.
Appellant filed a Writ Petition and the High Court directed that the
amount deposited by the appellant be credited to the account of the first
respondent. An execution petition was filed by the first respondent for sale
of a plot belonging to the appellant, and a warrant of attachment was
issued. Appellant filed an objection petition claiming that since he had
already deposited more than the decretal amount, the decree stood satisfied and became inexecutable. He also challenged the jurisdiction of the
Execution Court. The Court passed an order for sale of the property.
Admittedly, the appellant was neither given notice nor was he present; nor
was he aware of the order. Sale warrant was issued and in the imction held,
the said plot was sold to the second respondent and his wife for a sum of
Rs. 1,05,000.
On coming to know of the sale, appellant filed a petition challenging
the sale on the grounds that it was collusive and fraudulent; that the price
was inadequate; that there was no notice issued to him and that there was
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D
no sale proclamation. The application was rejected and the sale was
confirmed hy the trial court. The appeal preferred by the appellant was E
dismissed by the appellate court. The revision petition was dismissed in
limine by the High Court. Hence this appeal.
Allowing the appeal, this Court
HELD : 1.1. Under Order 21 Rule 10 of Civil Procedure Code an F
application for execution should be made to the court ''which passed the
decree". Therefore, even if the value of the property sold at the execution
is more than Rs. 25,000 it does not take away the jurisdiction of the trial
court. Admittedly the decree in execution for Rs. 7,780.33 is within the
jurisdiction of the trial court, which passed the decree. [345-F-G]
G
Banwar Lal v. Smt. Prem Lata, A.I.R. (1990) S.C. 623, relied on.
1.2. By amending rule 1(1) of Order 21 C.P.C. in 1976 a right has
been given to the judgment-debtor to pay the decree debt either by depositing it into the Executing Court, or sending it by other modes of payment H
348
SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A with intimation to the decree holder so that the liability to pay interest
ceases from that date. It is an enabling provision for the benefit of'
judgment-debtor. Though by literal construction the appellant should
deposit ~he dccretal amount into the executing Court for claiming the
benefit of the discharge, the decree-holder undoubtedly had knowledge of
B
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deposit of the amount made by the appellant. Even before execution was
laid, the amount was available towards satisfaction of the d.ecree. The court
should have directed its attachment or directed the appellant to withdraw
that amount and deposit it into the court instead of launching tardious
process of execution by sale of immovable property. [355-B-D)
1.3. Had the court considered the objections and passed an order
under Order 21 Rule 23(2), it would be incumbent upon the appellant to
carry the order in an appeal. The omission to consider the objections is
not appealable. Had an order been made on the objections and was allowed
to become final, perhaps Order 21 Rules 90(3) would operate against the
objector. So the objection would still be open to the appellant to reiterate
D in his petition after the sale under s.47 or under Order 21 Rule 90.
[356-D-E]
E
F
G
1.4. In the proceedings under section 47 or Order 21 Rule 90, the
decree-holder is the affected necessary party. Though the auction purchaser need to be impleaded eonominee as respondent as the property was
purchased jointly at the court sale, it is enough that one among them is
impleaded as a party. It is not necessary to implead all the joint purchasers. [357-A-B)
Banwar Lal v. Smt. Prem Lata, A.J.R. (1990) S.C. 623 and Gajadhar
Prasad & Ors. v. Babu Bhakta Ratan & Ors., [1974) 1 S.C.R. 372, relied on.
2. The purpose of attachment under Order 21 Rule 54 is to make the
judgment-debtor aware that attachment has been effected and that he
should not make any transfer or encumber the property thereafter. It is in
the interest of the decree-holder to have the notice of attachment served
personally on the judgment-debtor. Nevertheless the sale is not void,
though the omission to serve the copy of the order of attachment is an
irregularity. [357-G]
3.1. The absence of notice causes irremedial injury to the judgmentH debtor. Equally publication of the proclamation of sale under Order 21
O.B. GUPTA i•. N.L. ANAND
349
Rule 67 and ·specifying the date and place of sale of the property under A
Rule 66(2) are intended so that the prospective bidders would know the
value and could make up their mind to offer the price at sale of the
property to secure competitive bidders and fair price to the property sold.
Absence of notice to the judgment-debtor disables him to offer his estimate
B
of the value and to convass and bring the intending bidders at the time of
sale. It also disables him from pursuing if any fraud or irregularity has
been committed in the publication and conduct of sale. It would be
broached from yet another angle. The compulsory sale of immovable
property under Order 21 divests right, title and interest of the judgment·
debtor and confers those rights, in favour of the purchaser. It thereby
deals with the rights and disabilities either of the judgment-debtor or the C
decree holder. A sale· made, without notice to the judgment-debtor is
therefore a nullity since it divests the judgment debtor of his right, title
and interest in his property without an opportunity. The jurisdiction to
sell the property would arise in a court only where the owner is given notice
of the execution for attachment and sale of his property. It is very salutory D
that a person's property cannot be sold without his being told that it is
being so sold and given an opportunity to offer his estimate as he is the
person who intimately knew the value of his property prevailing in the
locality, though exaggeration may at times be possible. The service of
notice on the judgment-debtor is a fundamental part of the procedure
touching upon the jurisdiction of the Execution Court to take further steps E
to sell his immovable property. Therefore, notice under Order 21 Rule
66(2), unless proviso is applied (if no already issued under Order 21 Rule
22), and its service is mandatory. It is made manifest by Order 21 Rule
54(1A) brought on statute by the 1976 Amendment Act. The omission
thereof renders the further action and the sale in pursuance thereof void F
unless the judgment-debtor appears without notice and thereby waives the
service of notice. [360-E-H; 361-A-E]
3.2. In the instant case, the execution court had completely over·
looked compliance of the mandatory procedure, accepted ipsi dixit of the
decree-holder even without calling amin's report. The decree-holder in a G
complaint given to the Income-tax Department got valued the site with an
approved valuer at Rs. 3,33,333'.00 but he valued in the Execution Petition
at Rs. 1,00,000. The Court accepted it without indicating grounds for this
preference and given a programme of sale. It did not bother even to
consider the objections of the judgment-debtor that sufficient amount to H
350
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A
meet the decree debt was already in deposit. It is a case of non-application
of judicial mind and abdication of judicial duty. [316-F -G)
B
Rajagopal Iyer v. Ramachandra Iye1; 1.L.R. (1947) Mad. 288, approved.
4.1. Though the insertion of an order judicially passed need not be
made in the sale proclamation but the record should indicate that a
judicial order has been passed showing thl;lt the court had applied its mind
to the neetl for determining all the essential particulars, which would
reasonably be looked for by an intending purchaser. The relevant and
C material particulars should be inserted in the sale proclaimed as accurately and precisely as possible. The order should show that it considered the
objections, if any, of the decree-holders of the judgment-debtors, as the
case may be. [361-H; 362-A, BJ
D
4.2. Order 21 Rule 54 sub-rule (lA) brought by 1976 Amendment Act
mandates that the court should require the judgment-debtor to attend the
court on a specified date to take notice of the court to be fixed for settling
the terms of proclamation of sale. Form 24 of Appendix 'E' second para
and the court rules also envisage the mandate. It is a reminder to the court
that it has a statutory duty to issue notice to the judgment-debtor before
E settlement of the terms of proclamation of sale. Then only the proviso to
rule 66(2) comes into play dispensing with multiplicity of notices and not
dispensation of mandatory compliance of notice to the judgment-debtor.
Had it been a case where notice was served and the appellant lay by,
without objecting to the valuation given by by the decree holder, certainly
F
that would be put against the appellant to impugned the irregnlarities
after the sale or the under-valuation settled by the court in the proclamation of sale. [362-C-E]
4.3. A proclamation of sale drawn casually without compliance of the
mandatory requirement and a sale held in furtherance thereof is not a sale
G in the eye of law. The procedure adopted by the court in non-compliance
of Order 21 Rule 66 and 67 is in flagrant breach of the mandatory
provision. It is a nullity ab initio. [363-A-B]
Shalimar Cinema v. Bhasin Film Co1poratio11, A.l.R. (1987) S.C. 2081,
H relied on.
D.B. GUPTA v. N.L. ANAND
351
5.1. Order 21Rule90 was brought on statute by 1976 Amendment Act. A
Sub-rule(3) thereof is like a "Caveat emptor" that the judgment-debtor be
vigilant and watchful to vindicate pre-sale illegalities or material irregulaties. He should not stand by to procrastinate the execution proceedings. If he so does, Rule 90(3) forewarns him that he pays penalty for
·iibduracy and contumacy. Ec1ually it is a reminder that the court should be
strict to comply with the procedural part under Rule 54(1A) before deprivB
ing the judgment-debtor of the remedy under Article 21 Rule 90 C.P.C. If
he had noticed from court and acquiesced to take action before the date of
sale, he would be precluded to assail its legality or correctness thereafter.
[364-F-H]
5.2. The appellant had not been served with or given notice at the time c
of drawing up the proclamation of sale and as a matter of fact no proclamation of sale was drawn up by the executing court except accepting the ipsi
dixit of the decree-holder. The procedure adopted by the executing court
brittles with several irregularities touching the jurisdiction of the court.
They have not only material irregularities causing substantial injustice but D
are in violation of the mandatory requirements of the rules.
[364-H; 365-A-RJ
5.3. Under Section 47 C.P.C. all questions relating to execution, discharge or satisfaction of the decree should be determined by the execution
court alone. The pre-sale illegalities committed in he execution are
amenable to the remedy under section 47. Post-sale illegalities or irregularities causing substantial injury to the judgment-debtor are covered
under Order 21 Rule 90. There is distinction between mere irregularity and
material irregularity and the sale is not liable to be set aside on proof of
mere irregularity. It must be material irregularity and the court must be
satisfied that on account thereof substantial injury was sustained by the
appellant. [367-E-H]
5.4. In the instant case, the sale of 550 sq. yards for recovery of paltry
sum of Rs. 7,780.33 without selling a portion thereof, caused substantial
injury to the appellant, and the same is set aside. [368-A]
Ambati Narasayya v. M. Subba Rao, A.I.R. (1990) S.C. 119; Mangat
Prasad v. J(Jislma Kumar Maheshwmi, A.I.R. (1992) S.C. 1857; Takaseela
Pedda Subba Reddy v. Pujmi Padmavathamma, [1977] 3 S.C.R. 692 and
Kayjay Industries (P) Ltd. v. A.mew Dnuns (P) Ltd., [1974] 3 S.C.R. 678,
relied on.
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352
SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A
Janak Raj v. Gurdial Singh & Anr., (1967) 2 S.C.R. 77; Chinnamal v.
B
c
P. Ammugham, (1990] 1 S.C.C. 513 and Dhirendra Nath Gorai & Subal
Chandra v. Sudhir Chandra Ghosh, [1964] 6 S.C.R. 10001, distinguished.
[This Court directed the appellant to withdraw the sum of Rs.
7, 780.33 from the Court of the Rent Controller and deposit the same
towards decree amount for being paid to the first respondent, and that the
appellant was free to withdraw the balance. It also observed that the
11uction purchaser was free to withdraw the sale price deposited in Bank
viz. Rs. 1,05,000 with interest.]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2692 of
1984.
From the Judgment and Order dated 8.5.84 of the Delhi High Court
in C.M. (M) No. 122 of 1984.
D
Dcsh Bandhu Gupta in person for the Appellant.
E
M.S. Gujral and S.K. Sabharwal for the Respondent No. 1.
K. Madhava Reddy, Raju Ramachandran and Joseph Pookkatt for
the Respondent No. 2.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. The appellant judgment debtor, was a tenant
of Smt. Shanti Devi, who applied on September 28, 1974 for eviction of him
for committing default in paying the rent. On September 30, 1974, she sold
F
it to the first respondent who got impleaded himself in the pending
proceedings and also independently sought for eviction. Pending the
proceedings the appellant deposited rent in the name of Shanti Devi which
now is ultimately found to be Rs. 13,440. The decree for eviction made
against him was ultimately confirmed by this court. The suit of the first
respondent for the arrears of rent was decreed for a sum of Rs. 6,419.98.
G Pending eviction proceedings, in the Writ Petition No. 830 of 1978 of the
appellant, the High Court of Delhi directed on September 6,1979, after
hearing both the parties, and without prejudice to the contentions of the
respondent, that the amount deposited by him may be credited to the
account of the respondent. The first respondent filed E.P .. No. 1974/78 in
H the court of the Addi. Sub Judge, !st Class for sale of the appellant's plot
D.B.GUPTA v. N.L.ANAND [RAMASWAMY,J.J
353
of land bearing 31/35, Punjabi Bagh, New Delhi, a commercial area of an A
extent of 550 square yards to recover Rs. 7,780.33 which includes costs. On
November 4,1978 warrant of its attachment was issued under Order 21
Rule 54 in Form 24 of appendix 'E' of the schedule to C.P.C. On becoming
aware of that the appellant filed an objection petition contending that since
he had already deposited in the Rent Control case Rs. 13,440.00, more than
the decretal amount, in the Rent Control Court, the decree stands satisfied
and became inexecutable. He also pleaded that Execution Court is devoid
of jurisdiction as its pecuniary jurisdiction is limited to Rs. 25,000. Arguments were heard thereon. Ultimately on April 20, 1979 the Court passed
the order thus :
"Order dictated on this date. The Decree Holder has moved
an application under. Order 21 Rule 66, CPC for warrant of
proclamation of sale by public auction of the property of JD. I.
Accordingly allow the application of the Decree Holder for sale
of the property of the J.D. as per the following programmes:-
Court door
3 May, 1990
Spot
17 May, 1979
Auction
6 July, 1979
Report
13 July, 1979."
(original records were called for and this was the only order found
from the record)
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Admittedly the app,ellant was neither given notice nor was he F
present, nor aware of passing that order. On May 2, 1979 sale warrant
under Order 21 Rule 66, C.P.C. was issued. On July 6, 1979 auction was
held in which Rajinder Singh and his wife Tavinder Kaur were joint highest
bidders for a sum of Rs. 1,05,000. On becoming aware of the sale on August
10, 1979 the appellant immediately filed a petition under Order 21 Rule 90
C.P.C. raising objection to the validity of the sale. On inspection of the G
record he later on filed an application, which was allowed on payment of
costs, to impugne the sale under s. 47 Order 151 C.P.C. He pleaded that
the sale was collusive and fraudulent. The value of the site was Rs. 3,50,000.
It was sold for inadequate price. He was not served with any notice either
under Order 21 Rule 54 or under Order 21 Rule 66. There is no sale H
A
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SUPREME COURT REPORTS 119931SUPP.2 S.C.R.
proclamation. No notice was issued before settling the terms of the
proclamation of sale. The sale proclamation neither specified the place or
time al which the sale was lo he conducted, nor was it published in the
locality. He reiterated his plea of his prior deposit of more than the E.P.,
amount, and the execution court's lack of pecuniary jurisdiction and absence of wide publicity led to fetching of Jess price. The so called bidders
were not genuine persons nor had the capacity lo purchase the property.
Only the second respondent and his brother were the participants and the
bid was, therefore, a collusive one. The Execution Court held that due
procedure was followed in bringing the property to sale. In view of Order
21 Rule 90(3) the objections raised to the validity of the sale cannot be
gone into. The price fetched was an adequate one. The attachment order
was served by affixing it on the site and there was no collusion. Accordingly
I.he application was rejected and confirmed the sale. The Appellate Court,
without going into all the contentions, considered the scope of Order 21
Rule 90(3) and held that by its operation pre-sale illegalities or irD regularities do not vitiate the sale and dismissed the appeal. The High
Court dismissed the revision in limine. Thus this appeal by special leave.
E
F
Mr. Gupta, the appellant, an Advocate argued in person. The first
respondent, the decree holder, is also an Advocate, but appeared through
Mr. Gujral, learned Senior counsel. The auction purchaser was represented
by Mr. K. Madhava Reddy, the learned Senior Counsel. The contention of
Mr. Gupta that the Execution Court having been conferred with pecuniary
jurisdiction upto Rs. 25,000, had no jurisdiction to execute the decree
against the property whose value is Rs. 3,50,000, is devoid of substance.
Under 21 Rule 10 of CPC an application for execution should be made to
the court "which passed the decree". Therefore, the value of the property
sold at the execution is more than Rs. 25,000 does not take away the
jurisdiction of the trial court. In Banwar Lal v. Smt. Prem Lata, AIR (1990)
SC 623, this court held that the value of the property sold in execution is
not relevant to determine the jurisdiction of the execution court. Admittedly the decree in execution for Rs. 7780.33 is within the jurisdiction of
G the trial court, which passed the decree. Equally the contention of Sri
Madhava Reddy that the mode of payment of money decree envisaged
under Order 21 Rule 1(1) must be by deposit of the decree amount into
the court is equally devoid of force. Undoubtedly, literal reading of Order
21 Rule l(l) provides that the mode of paying decretal money is either by
H depositing in the Executing Court or sending to the court by postal orde'r
0.13. GUPTA v. N.L. ANAND fRAMASW.'\.l\;fY, J.]
355
or through bank draft or out of court to the decree holder by postal order A
or bank draft or any other mode where the payment is evidenced in writing
or as the court which made the decree otherwise directs. The other
sub-rules are not relevant for the purpose of this case. By amending the
rule in 1976 a right has been given ta the judgment debtor to pay the decree
debt either by depositing into the Executing Court or to send it by other
modes of payment with intimation to the decree holder in latter cases so
that the liability to pay interest ceases from that date. It is an enabling
provision for the benefit of judgment debtor. Though by literal construction
the appellant should deposit the decretal amount into the Executing Court
for claiming the benefit of the discharge but anterior to it, in the Rent
Controller proceedings, the decree holder had knowledge of undoubted
deposit of the amount made by the appellant. The liberty of "without
prejudice" given to the respondent by the High Court in the Writ Petition
was for the purpose of his defence, that the deposit in Shanti Devi's name
was not payment to him, after knowledge of his purchase, for the purpose
B
c
of default. But the parties being Advocates adopted legalistic stands. The D
substance is that even before execution was laid the amount was available
towards satisfaction of the decree. The court should have directed its
attachment and payment made or directed the appellant to withdraw that
amount and deposit into the court, instead of launching tardious process
of execution by sale of immovable property. When the factum of deposit
was disputed, this court called for a report and the Addi. Dist. Judge, had E
in his report, stated that the appellant deposited about 13,000 and odd and
it was lying in credit in the Rent Controller proceedings. The further
contention that there were other liabilities which the appellant had not
discharged, bears no foundation. Even otherwise there was no order of
attachment of that amount by any court. The finding of the appellate court
F
that the deposit was not to the credit of the suit is also not legal. In our
considered view neither the stand of the Ist respondent nor the reasoning
of the courts below are tenable. When the arrears of rent for which the
decree was made was already in deposit to the knowledge of Anand in his
eviction case and when the appellant objected to the execution, the Executing Court either should have directed the appellant to withdraw the money G
and credit the same to the suit account before its attachment was made or
it should have passed an order under Order 21 Rule 23(2) which postulates
thus: "Where such persons offers any objection to the execution of the
decree, the court shall consider such objection and make such order as it
H
356
SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A
thinks fit." It is, therefore, the mandatory duty of the Executing Court to
consider such objection and to make an order in that behalf. No such order
has been made. It is true that in the contempt application filed by the
appellant against the first respondent, an order was passed rejecting the
appellant's contention that he had already deposited the decretal amount.
B
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Objection should independently be considered under Order 21 Rule 23.
The order in the contempt petition is not a substitute to an order under
Order 21 Rule 23(2), CPC. The objections, therefore, are still open to the
appellant for being raised impugning the validity of the sale. The procedure
is the handmaid to justice. The substance of the matter, in the given
circumstances is that the deposit made in the eviction case be considered
to be one made under Order 21 Rule 1(1) (a) into the suit out of which
the execution arose.
The further contention of Sri Madhava Reddy that the appellant
should have filed an appeal against an action of the Execution Court in not
D considering the objections is also devoid of substance. Had the court
considered the objections and passed an order under Order 21 Rule 23(2),
it would be incumbent upon the appellant to carry the order in an appeal.
The omission to consider the objections is not appealable. Had an order
been made on the objections and was allowed it to become final, perhaps
Order 21 Rule 90(3) would operate against the· objector. So the objection
E would still be open to the appellant to reiterate in his petition after the sale
under s. 47 or Order 21 Rule 90.
The further contention of Sri Madhava Reddy that the objection
petition and the appeal are not maintainable as the wife of Rajinder Singh,
p
joint purchaser was not impleaded ea-nominee as respondent, too is devoid
of force. The application to set aside the execution sale is primarily against
the decree holder since he is a person at whose instance and benefit the
execution proceedings were initiated and the sale was held to discharge his
decree debt. Therefore, primarily he is the person entitled to be heard and
since he is in-charge of publishing the notices and to conduct the sale, it
G is he that lays before the court the steps taken or the procedure followed
in service of notice or conducting the sale and to establish that they have
been done properly, regularly and in accordance with the law. The auction
purchaser gets right only on confirmation of sale and till then this right is
nebulous and has only right to consideration for confirmation of sale. If the
H sale is set aside, apart from the auction purchaser, the decree holder is
D.B. GUPTA v. N.L. ANAND [RAMASWAMY,].]
357
affected since the realisation of his decree holder is put off and he would A
be obligated to initiate execution proceedings afresh lo recover the decree
debt. Therefore, in the proceedings under s.47 or Order 21 Rule 90, the
decree holder is the affected necessary party. Though the auction purchaser need to be impleaded co-nominee as respondent as the property
was purchased jointly at the court sale, it is enough that one among them
had been impleaded as a party. It is not necessary to implead all the joint
purchasers.
The contention of Mr. Gupta that as Form 29 of appendix 'E'
prescribes that when an auction purchaser participated in the bid on behalf
B
of third party, he should file his power or authority to bid at the auction C
on behalf of the third party, and in its absence the sale itself is a nullity, is
devoid of substance. The rigour of the need to obtain power or authority
arises only when he acts as an agent but not when he had, per himself and
other's behalf, participated in the bid. Prudence requires that the sale
officer should satisfy himself whether the participant is a real or proxy D
bidder. It should exclude the proxy unless he places before him the
authority that in the event of the sale being knocked down, he would be
bound by the sale and terms thereof. The second respondent admittedly
participated and purchased the property not only on his behalf but also on
behalf of his wife. Therefore, the need to obtain such power from his wife
to bid on her behalf also is obviated.
E
Mr. Gupta contended that under Order 21Rule54 the appellant had
not been served with the order of attachment. Either the appellant or the
inmates of his house were always available at his residence. It was said to
have been affixed at the site and his enquiries revealed that no such affixer p
at the site was made. It is an admitted position that no personal service on
the appellant was effected but nonetheless evidence discloses that it was
affixed at the site. The purpose of attachment under rule 54 is to make the
judgment debtor aware that attachment has been effected and that he
should not make any transfer or encumber the property thereafter. It is in
the interest of the decree holder to have the notice of attachment served G
personally on the judgment debtor. Nevertheless the sale is not void,
though the omission to serve ·the copy of the order of attachment is an
irregularity. Since no encumbrance thereafter was created on the attached
property, non-service of the copy of the order of attachment on the
judgment debtor does not render the sale invalid.
H
I
A
B
c
358
SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
It is further contended that property was not fully described except
mentioning the plot number and the extent which is not consislcnt with the
Form No. 24 of appendix 'E' which postulates that the property should be
fully described. It is ·seen that in the execution petition a plan with full
description was attached. The evidence is not clear whether the plan was
attached to the order of attachment or a copy thereof was attached to it.
It was for the benefit of the intending purchasers to inspect the property
before deciding to participate in the auction. Nevertheless so long as the
property is identifiable, the omission of full description of the plot also is
only an irregularity. In any event the bidders were not misled.
However, there is considerable force in the contention of the appellant that the procedure prescribed under Order 21 Rule 66 was flagrently
violated by the Executing Court. We have alrroady noted the order of the
court to conduct the sale. For judging its legality and validity, it would be
desirable to have a bird's eye view of the procedure for sale of immovable
D property in execution. On an application for execution filed under Order
21 rule 5 the court shall ascertain the compliance of the prerequisites
contemplated under Rule 17 and on finding the application in order, it
should be admitted and so to make an order, thereon to issue notice under
Rule 22, subject to the conditions specified therein. If a notice was served
E
on the judgment debtor as enjoined under Order 5 but he did not appear
or had not shown cause to the satisfaction of the court, under Rule 23 the
court "shall order the decree to be executed". If an objection is raised to
the execution of the decree, by operation of sub-rule (2) thereof, "the court
shall consider such objections and make such order as it thinks fit".
F
Thereafter in the case of a decree for execution against immovable property an attachment under Rule 54 should be made by an order prohibiting
the judgment debtor from transferring or creating encumbrances on the
property. Under Rule 64 the court may order sale of the said property.
Under Rule 66 (2) proclamation of sale by public auction shall be drawn
up in the language of the court and it should be done after notice to the
G decree holder and the judgment debtor and should state "the time and
place of sale" and "specified as fairly and accurately as possible" the details
specified in clauses (a) to (d) of sub-rule (2) thereof. The Civil Rules of
Practice in Part L in the Chapter 12 framed by the High Court of Delhi
'Sale of Property and Delivery to the Purchaser' Rule 2 provides that
H whenever a court makes an order for the sale of any attached property
\
D.ll. CilJPTA , .. N.I.. ANAND jRAMASWAMY, J.]
359
under Order 21, Ruic 64, it shall fix a convenient date not being distant A
more than 15 days, for ascertaining the particulars specified in Order 21
Rule 66(2) and settling the proclamation of sale. Notice of the date so fixed
shall he given to the parties or their pleaders. In Rule 4 captioned 'Settlement of Proclamation of sale, estimate of value' it is stated that on the day
so fixed, the conrt shall, after perusing the documents, if any, and the
report referred to in the preceding paragraph, after examining the decree
holder and judgment debtor, if present; and after making such further
enquiry as it may consider necessary, settle the proclamation of sale
specifying as clearly and accurately as possible the matters required by
Order 21 Rule 66(2) of the Code. The specification have been enumerated
in the rule itself. The proclamation for sale is an important part of the
proceedings and the details should be ascertained and noted with care.
This will remove the basis for many a belated objections to the sale at a
later date. It is not necessary to give at proclamation of sale the estimate
of the value of the property. The proclamation when settled shall be signed
B
c
hy the Judge and got published in the manner prescribed by Rule 67. The D
court should authorise its officers to conduct sale. Under Rule 68 the sale
should be conducted at "the place and time" specified or the time may be
modified with the consent in writing of the judgment debtor. The proclamation should include the estimate, if any, given by either JD or DH or both
the parties. Service of notice on Judgment debtor under Order 21 Rule E
66(2), unless waived by appearance or remained ex parte, is a fundamental
step in the procedure of the court in execution. J.D. should have an
opportunity to give his estimate of the property. The estimate of the value
of the property is a material fact to enable the purchaser to know its value.
It must be verified as accurately and fairly as possible so that the intending F
bidders are not misled or to prevent them from 0ffering inadequate price
or to enable them to make a decision in offering adequate price. In
Gajadhar Prasad & Ors. v. Babu Bhakta Ratan & Ors., [1974] 1 SCR 372,
this court, after noticing the conflict of judicial opinion among the High
Courts, held that a review of the authorities as well as the amendments to
rule 66(2) ( e) make it abundantly clear that the court, when stating the G
estimated value of the property to be sold, must not accept merely the ipse
dixit of one side. It is certainly not necessary for it to state its own estimate.
If this was required, it may, to be fair, necessitate insertion of something
like a summary of a judicially considered order, giving its grounds, in the
H
360
SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A sale proclamation, which may confuse bidders. It may also be quite misleading if the court's estimate is erroneous. Moreover, rule 66(2) (e)
requires the court to state only nature of the property so that the purchaser
si1ould be left to judge the value for himself. But, the essential facts which
have a bearing on the very material question of value of the property and
B which could assist the purchaser in forming his own opinion must be stated,
i.e. the value of the property, that is, after all, the whole object of Order
21, Rule 66 (2) ( e ), CPC. The court has only to decide what are all these
material particulars in each case. We think that this is an obligation
imposed by Rule 66 (2) (e). In discharging it, the court should normally
state the valuation given by both the decree holder as well as the judgment
C debtor where they both have valued the property, and it does not appear
fantastic. It may usefully state other material facts, such as the area of land,
nature of rights in it, municipal assessment, actual rents realised, which
could reasonably and usefully be stated succinctly in a sale proclamation
has to be determined on the facts of each particular case. Inflexible rules
D are not desirable on such a question. It could also be angulated from
another perspective. Sub-rule (1) of Rule 66 enjoins the court that the
details enumerated in sub-rule (2) shall be specified as fairly and accurately
as possible. The duty to comply with it arises only after service of the notice
on the .iudgment-debtor unless he voluntarily appears and given opporE
F
tunity in the settlement of the value of the property. The absence of notice
causes irremedial injury to the judgment debtor. Equally publication of the
proclamation of sale under Rule 67 and specifying the date and place of
sale of the property under Rule 66(2) are intended that the prospective
bidders would know the value so as to make up their mind to offer the
price and to attend at sale of the property and to secure competitive
bidders and fair price to the property sold. Absence of notice to the
judgment debtor disables him to offer his estimate of the value who is
better knows its value and to publicise on his part convassing and bringing
the intending bidders at the time of sale. Absence of notice prevents him
to do the above and also disables him to know fraud committed in the
publication and conduct of sale or other material irregularities in the
G conduct of sale. It would be broached from yet another angle. The compulsory sale of immovable property under Order 21 divests right, title and
interest of the judgment debtor and confers those rights, in favour of the
purchaser. It thereby deals with the rights and disabilities either of the
judgment debtor or the decree holder. A sale made, therefore, without
H
D.B. GUPTA v. N.L. ANAND [RAMASWAMY,J.]
361
notice to the judgment debtor is a nullity since it divests the judgment A
debtor of his right, title and interest in his property without an opportunity.
The jurisdiction to sell the property would arise in a court only where the
owner is given notice of the execution for attachment and sale of his
property. It is very salutory that a person's property cannot be sold without
his being told that it is being so sold and given an opportunity to offer his B
estimate as he is the person who intimately knew the value of his property
and prevailing in the locality, exaggerating may at time be possible. In
Rajagopal Iyer v. Ramachandra Iyer, ILR (1947) Mad. 288, the Full Bench
held that a sale without notice under Order 21 Rule 22 is a nullity and is
void and that it has not got to be set aside. If an application to set aside
such a void sale is made it would fall under s. 47.
C
Above discussion do indicate discernable rule that service of notice
on the judgment debtor is a fundamental part of the procedure touching
upon the jurisdiction of the Execution Court to take further steps to sell
his immovable property. Therefore, notice under Order 21 Rule 66(2), D
unless proviso is applied (if not already issued under Order 21 Rule 22),
and service is mandatory. It is made manifest by Order 21 Rule 54(1A)
brought on statute by 1976 Amendment Act with peremptory language that
before settling the terms of the proclamation that the J .D. shall be served
with a notice before settling the terms of the proclamation of sale. The
omission thereof renders the further action and the sale in pursuance
thereof void unless the judgment debtor appears without notice and thereby waives the service of notice.
E
In the case before us, the execution court had completely overlooked
compliance of the mandatory procedure, accepted ipsi dixit of the decree F
holder even without calling amin's report. The decree holder in a complaint
given to the Income-tax Department got valued the site with an approved
valuer at Rs. 3,33,333.00 but he valued in the E.P. at Rs.