# SIDDAGANGAIAH (D) THR. LRS v. N.K. GIRIRAJA SHETTY (D) THR. LRS

- **Citation:** [2018] 6 S.C.R. 457
- **Court:** Supreme Court of India
- **Decided:** 2018-05-11
- **Case number:** Civil Appeal No. 5007 of 2018
- **Bench:** Arun Mishra, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/siddagangaiah-d-thr-lrs-v-n-k-giriraja-shetty-d-thr-lrs-33233
- **Pages:** 22

## Headnote

Code of Civil Procedure, 1908:
Or.XXI r.90, r/w s.47 - Suit for title and declaration filed on
the basis of purchase of suit property from defendant no.1 -
Defendant no. 2 who is wife of defendant no. 1 contended that
defendant no. 1 could not have sold the suit property to plaintiff as
she had obtained charge on the suit property in a maintenance suit
- Her case was that her husband in collusion with the plaintiff
orchestrated a nominal and fictitious sale deed and the said sale
deed was executed during the pendency of maintenance suit and,
thus, was hit by s.52 of TP Act - The said suit was finally held in her
favour and she obtained decree and the property was auctioned
and successfully purchased by her in court auction - Defendant
no. 1 filed an application under Or.XXI, r.90 and plaintiff also filed
an application under s.47 r/w Or.XXI, r.90 to set aside the sale -
Application of defendant no.1 was dismissed as not pressed -
Application by plaintiff for setting aside the sale was also dismissed
in default of appearance and sale was confirmed - Defendant no.2
sold the suit property to appellant-defendant no.3 - Plaintiff
suppressing the factum of having filed application under Or.XXI,
r.90 and its dismissal filed suit for declaration of title and restoration
of possession - Whether the suit was hit by principle of res judicata
in view of dismissal of application under Or.XXI, r.90 r/w s.47 -
Held: Where an application has been filed under Or.XXI, r.90 to set
aside a sale on the ground of material irregularity, and the sale is
confirmed under r.92(1) of Or.XXI, the objector is precluded by
virtue of the provisions under Or.XXI, r.92(3) from bringing a suit
to set aside the sale on the same grounds - The auction purchase
made by defendant no.2 (decree-holder) had attained finality -
Confirmation of sale was not questioned by the plaintiff - Thus, no
[2018] 6 S.C.R. 457
 457
A
B
C
D
E
F
G
H
458
SUPREME COURT REPORTS
[2018] 6 S.C.R.
relief could have been granted - The earlier orders attained finality
and, therefore, operated as a bar for the entertainment of the fresh
suit - As regards question of lis pendens, on the date of purchase of
suit property by plaintiff, the suit filed by defendant no.2 was
pending - Thus, the provisions contained in s.52 would clearly apply
to the case - Suit for title and declaration liable to be dismissed -
Transfer of Property Act, 1882 - s.52 - lis pendens - Doctrine of
res judicata.
Allowing the appeal, the Court
HELD: 1.1 Sub-rule (1) of Order XXI Rule 90 makes it
clear that when 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 ratable distribution of assets,
or whose interests are affected by the sale, may apply to the Court
to set aside the sale on the ground of a material irregularity or
fraud in publishing or conducting it. As provided in sub-rule (2)
of Rule 90 of Order XXI merely on the ground of irregularity or
fraud, the sale shall not be set aside unless the substantial injury
has been caused to the objector by reason of such irregularity or
fraud and such an objection should be the one which could not
have been raised before the date on which the proclamation of
sale was drawn up as provided in Order XXI Rule 90 sub-rule (3)
and mere defect or absence of attachment of the property shall
not be a ground for setting aside a sale. It is necessary to prove
the substantial injury where fraud or material irregularity has taken
place whereby injustice had been suffered. In the present case,
the application under Order XXI Rule 90 was filed by original
plaintiff which was dismissed for default in appearance. It was
nonetheless dismissal of the application so filed. It was not a case
set up that the decree passed in maintenance case was obtained
by fraud and substantial injury thereby has been caused. [Para
23] [470-C-F]
Rajender Singh v. Ramdhar Singh & Ors. AIR 2001
SC 2220 - relied on.
1.2 Wher

## Text

_Characters 0–39,621 of 52,752. This is a partial read: ask again with offset=39621 for what follows._

A
B
C
D
E
F
G
H
457
SIDDAGANGAIAH (D) THR. LRS.
v.
N.K. GIRIRAJA SHETTY (D) THR. LRS.
(Civil Appeal No. 5007 of 2018)
MAY 11, 2018
[ARUN MISHRA AND UDAY UMESH LALIT, JJ.]
Code of Civil Procedure, 1908:
Or.XXI r.90, r/w s.47 - Suit for title and declaration filed on
the basis of purchase of suit property from defendant no.1 -
Defendant no. 2 who is wife of defendant no. 1 contended that
defendant no. 1 could not have sold the suit property to plaintiff as
she had obtained charge on the suit property in a maintenance suit
- Her case was that her husband in collusion with the plaintiff
orchestrated a nominal and fictitious sale deed and the said sale
deed was executed during the pendency of maintenance suit and,
thus, was hit by s.52 of TP Act - The said suit was finally held in her
favour and she obtained decree and the property was auctioned
and successfully purchased by her in court auction - Defendant
no. 1 filed an application under Or.XXI, r.90 and plaintiff also filed
an application under s.47 r/w Or.XXI, r.90 to set aside the sale -
Application of defendant no.1 was dismissed as not pressed -
Application by plaintiff for setting aside the sale was also dismissed
in default of appearance and sale was confirmed - Defendant no.2
sold the suit property to appellant-defendant no.3 - Plaintiff
suppressing the factum of having filed application under Or.XXI,
r.90 and its dismissal filed suit for declaration of title and restoration
of possession - Whether the suit was hit by principle of res judicata
in view of dismissal of application under Or.XXI, r.90 r/w s.47 -
Held: Where an application has been filed under Or.XXI, r.90 to set
aside a sale on the ground of material irregularity, and the sale is
confirmed under r.92(1) of Or.XXI, the objector is precluded by
virtue of the provisions under Or.XXI, r.92(3) from bringing a suit
to set aside the sale on the same grounds - The auction purchase
made by defendant no.2 (decree-holder) had attained finality -
Confirmation of sale was not questioned by the plaintiff - Thus, no
[2018] 6 S.C.R. 457
 457
A
B
C
D
E
F
G
H
458
SUPREME COURT REPORTS
[2018] 6 S.C.R.
relief could have been granted - The earlier orders attained finality
and, therefore, operated as a bar for the entertainment of the fresh
suit - As regards question of lis pendens, on the date of purchase of
suit property by plaintiff, the suit filed by defendant no.2 was
pending - Thus, the provisions contained in s.52 would clearly apply
to the case - Suit for title and declaration liable to be dismissed -
Transfer of Property Act, 1882 - s.52 - lis pendens - Doctrine of
res judicata.
Allowing the appeal, the Court
HELD: 1.1 Sub-rule (1) of Order XXI Rule 90 makes it
clear that when 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 ratable distribution of assets,
or whose interests are affected by the sale, may apply to the Court
to set aside the sale on the ground of a material irregularity or
fraud in publishing or conducting it. As provided in sub-rule (2)
of Rule 90 of Order XXI merely on the ground of irregularity or
fraud, the sale shall not be set aside unless the substantial injury
has been caused to the objector by reason of such irregularity or
fraud and such an objection should be the one which could not
have been raised before the date on which the proclamation of
sale was drawn up as provided in Order XXI Rule 90 sub-rule (3)
and mere defect or absence of attachment of the property shall
not be a ground for setting aside a sale. It is necessary to prove
the substantial injury where fraud or material irregularity has taken
place whereby injustice had been suffered. In the present case,
the application under Order XXI Rule 90 was filed by original
plaintiff which was dismissed for default in appearance. It was
nonetheless dismissal of the application so filed. It was not a case
set up that the decree passed in maintenance case was obtained
by fraud and substantial injury thereby has been caused. [Para
23] [470-C-F]
Rajender Singh v. Ramdhar Singh & Ors. AIR 2001
SC 2220 - relied on.
1.2 Where an application has been filed under Rule 90
Order XXI CPC to set aside a sale on the ground of material
A
B
C
D
E
F
G
H
459
irregularity, and the sale is confirmed under Rule 92(1) of Order
XXI, the objector is precluded by virtue of the provisions under
Order XXI Rule 92(3) from bringing a suit to set aside the sale
on the same grounds. [Para 24] [470-G]
Brahayya v. Appayya, (1921) 44 Mad. 351 : 62 IC
203 : AIR 21 Mad. 121, Ma Saw v. Maung Kyaw AIR
28 Rang 18; Nand Kishore v. Sultan AIR 1926 Lah
165 - approved.
1.3 When the auction purchaser is the decree-holder
himself and when an application is made to set aside the sale on
a ground other than that covered by Rule 90 and no application
has been made under Rule 89, the case would fall under section
47. Thus, it would depend upon the grounds which are urged in
the application. It is permissible to join a claim to set aside a sale
on the ground of material irregularity under Order XXI, Rule 90
with a claim under section 47 for a declaration that the sale is a
nullity as the decree was passed after the death of the judgmentdebtor. Objection by legal representatives of deceased judgmentdebtor that suit land was ancestral property and sale was not
binding on them can be raised under section 47 read with Order
XXI Rule 90. However, it would depend upon the nature of the
objection whether it was covered under Rule 90 of Order XXI
CPC or not. There can be restoration of the petition dismissed
for default filed under Order XXI Rule 90 and thereafter if sale
has been confirmed, it is provided under Order XXI Rule 92(3)
that no suit to set aside an order made under Rule 92(1) shall be
brought by any person against whom such an order is made. Order
XXI Rule 92(1) provides that where an application has been filed
under Order XXI Rule 89, 90 or 91, same has been disallowed,
the court shall make an order confirming the sale and thereupon
the sale shall become absolute, and no suit shall lie as per the
mandate of sub-rule (3) of Rule 92 of Order XXI CPC against
whom such an order is made. The order confirming the sale may
be made either where no application is made at all to set aside
the sale or where an application is made and disallowed may be
that it is dismissed for default. No suit shall lie in either case to
set aside the order confirming the sale. The refusal to set aside a
SIDDAGANGAIAH (D) THR. LRS. v. N.K. GIRIRAJA SHETTY
(D) THR. LRS.
A
B
C
D
E
F
G
H
460
SUPREME COURT REPORTS
[2018] 6 S.C.R.
sale is an order appealable. In case the court has set aside or
refused to set aside a sale that would include a case where an
application under Order XXI Rule 89, 90 or 91 has been
dismissed for default. [Para 25] [471-A-F]
Superior Bank Ltd. v. Budh Singh, (1924) 22 All LJ
413 ; Akshia v. Govindarajulu (1924) 47 MLJ 549 -
approved.
2.1 In the instant case admittedly an application was filed
by original plaintiff under Order XXI, Rule 90 read with section
47, on the ground that he was the owner of the land in question
purchased by a sale deed dated 9.11.1974 for a sum of Rs.10,000/
- and was placed in possession. He was not aware of the court
sale. There was no beat of drums before the auction was held.
He was not aware of the execution proceedings. He was a
purchaser for value. The property was not correctly valued. There
were material irregularities in the conduct of the sale. Hardship
would be caused in case auction was confirmed. Thus, prayer
was made to set aside the auction sale. The aforesaid application
had been dismissed. Thus, Order XXI Rule 92(3) would operate
as a bar for the entertainment of the fresh suit on the ground so
urged. [Para 26] [471-G-H; 472-A-B]
2.2 The plaintiff has totally suppressed the factum of court
auction sale and confirmation in the plaint and did not make any
averment that he had filed an application under Order XXI Rule
90(1) and it was dismissed on 31.3.1978 whereas the suit was
filed on 19.4.1978 after 19 days of the dismissal of the objection
and confirmation of the sale. The plaintiff has not questioned the
auction so held by the court on the ground of fraud or any material
irregularity. He has claimed himself to be a bona fide purchaser.
That plea was also raised in the application filed under Order
XXI Rule 90. Dismissal of the same would preclude him to file a
fresh suit, it was incumbent upon him to question the court auction
on any permissible grounds necessary for the entertainment of
fresh suit but that has not been done. Order VI Rule 4 CPC
provides that the plea of fraud, misrepresentation, and collusion
has to specifically set out in the pleadings before any finding can
be given on the same. There is no evidence on record for
substantiating the plea which itself was not taken, it has neither
A
B
C
D
E
F
G
H
461
been substantiated. Thus, the first appellate court and the High
Court have committed gross illegality by giving the finding with
respect to fraud and collusion of the decree-holder and judgment
debtor in the court auction so held. The auction purchase made
by decree-holder had attained finality. Confirmation of sale was
not questioned by the plaintiff. Thus, no relief could have been
granted and the earlier orders have attained finality and operate
as a bar for the entertainment of the fresh suit. [Para 27, 28]
[472-B-D, E-G]
2.3 Coming to the question of lis pendens, decree-holder
had filed the suit in 1968 for the creation of charge of maintenance
inter alia on the properties in question. Explanation to Section
52 of the TP Act makes it clear that pendency of a suit or
proceeding shall be deemed to commence from the date of the
presentation of the plaint. Thus, on the date of execution of the
sale deed on 9.11.1974, the suit filed by decree-holder was
pending. Thus, the provisions contained in section 52 would
clearly apply to the case. [Para 29] [472-G-H; 473-A-B]
Nagubai Ammal & Ors. v. B. Shama Rao & Ors.
AIR 1956 SC 593 - relied on.
3. Section 39 of TP Act clearly makes out that charge of
maintenance can be enforced against the immovable property
held by a transferee. In the instant case, the transferee was not
put in possession of the property is apparent from the plaint and
possession of defendant No.1. The sale also does not appear to
be bona fide. It was clear with the intent to defeat the claim of the
wife for maintenance that is why possession had not been handed
over. The case of the plaintiff that though sale deed was executed
in 1974, defendant No.1 again took forcible possession in 1976,
is not worthy of acceptance. Apart from that it is not so pleaded
in the application under Order XXI Rule 90 that he was not aware
of the pendency of the suit at the time of execution of the sale
deed on 9.11.1974. He was a close friend of defendant No.1 and
was obviously aware of the factum of litigation pending since 1968.
Thus, he could not be said to be a bona fide purchaser at all.
Apart from that, the application under Order XXI Rule 90 read
with section 47 CPC containing the said plea stood dismissed.
[Para 31] [474-B-E]
SIDDAGANGAIAH (D) THR. LRS. v. N.K. GIRIRAJA SHETTY
(D) THR. LRS.
A
B
C
D
E
F
G
H
462
SUPREME COURT REPORTS
[2018] 6 S.C.R.
Sadhu Singh v. Gurdwara Sahib Narike & Ors. (2006)
8 SCC 75 - held inapplicable.
Nani Gopal Paul v. T. Prasad Singh & Ors. (1995) 3
SCC 579; Lal Chand v. VIIIth Addl. District Judge &
Ors. (1997) 4 SCC 356 - referred to.
4.1 In the instant case, there is no admission after parting
with the interest made in the execution proceedings inter se
husband and wife. The auction was held by the court in accordance
with law. It was not the case set up that the decree passed in the
maintenance suit was based upon fraud or a collusive one. Nor
was such a case so set up with respect to the auction of the
properties in the execution of the decree. On the contrary, the
husband had preferred an appeal against the judgment and decree
passed in the maintenance case, which was dismissed on merits.
[Para 40] [476-G-H; 477-A]
4.2 After parting with the interest, no admission with
respect to the interest which has been parted away is admissible,
Section 18 of Evidence Act is not attracted in the fact-situation of
the instant case. The so-called settlement entered into between
the husband and wife on 5.8.1978 has not been pressed into
service by either and has been disowned by the husband and wife
both. They set up a case that no such settlement had been entered
into nor any claim had been made by them on the basis thereof.
Had that been the case, the provisions of section 18 of the
Evidence Act would have been attracted. [Para 40] [477-F-G]
V. Swarajyalaxmi & Ors. v. Authorised Officer, Land
Reforms, AIR 2003 SC 2347: [2003] 3 SCR 575 - held
inapplicable.
Case Law Reference
(1995) 3 SCC 579
referred to
 Paras 21, 37
AIR 2001 SC 2220
relied on
 Para 23
(1921) 44 Mad. 351
approved
 Para 24
AIR 1926 Lah 165
approved
 Para 24
(1924) 22 All LJ 413
approved
 Para 25
(1924) 47 MLJ 549
approved
 Para 25
A
B
C
D
E
F
G
H
463
AIR 1956 SC 593
relied on
Para 29
(2006) 8 SCC 75
held inapplicable
Para 35
(1997) 4 SCC 356
referred to
Para 39
[2003] 3 SCR 575
held inapplicable
Para 41
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5007
of 2018.
From the Judgment and Order dated 18.12.2014 of the High Court
of Karnataka at Bengaluru in Regular Second Appeal No. 2633 of 2011.
Raju Ram Chandran, Sr. Adv., Joseph Pookkatt, Sheshagiri Rao,
Dhawesh Pahuja, M/s. Ap & J Chambers, Advs. for the Appellant.
S. S. Nagananda, Sr. Adv., Shyam Koundinya, Ms. K. V. Bharathi
Upadhyaya, Advs. for the Respondent.
The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. Leave granted.
2. The appeal has been preferred by the defendant. Backdrop
facts indicate that one Thopamma wife of Siddagirigowda filed suit O.S.
No.245/1968 against her husband in the Court of Munsiff, Doddaballapur
for grant of maintenance allowance at the rate of Rs.300 per month and
for creating a charge on 13 properties mentioned in the plaint schedule.
The suit was filed on 17.1.1968. During the pendency of the said suit
said Siddagirigowda husband of Thopamma executed a sale deed for a
sum of Rs.10,000/- in respect of survey No.11 admeasuring 5 acres 18
guntas and survey No.68/1 admeasuring 18 guntas, item Nos. 10 and 13
in the aforesaid suit in favour of N.K.Giriraja Shetty, father of respondent
No.1. On 6.2.1975, a declaration of handing over possession was executed
by Siddagirigowda in favour of purchaser regarding delivery of possession
of the properties.
3. The suit filed by Thopamma i.e. O.S. No.245 of 1968 was
decreed on 24.6.1976 that is by granting a maintenance allowance of
Rs.100/- per month recoverable from her husband from the date of filing
of the plaint till realisation and charge were created on the suit schedule
properties including the property which was sold to N.K. Giriraja Shetty
on 9.11.1974. The first appeal against the same was dismissed on merits
on 1.9.1976.
SIDDAGANGAIAH (D) THR. LRS. v. N.K. GIRIRAJA SHETTY
(D) THR. LRS.
A
B
C
D
E
F
G
H
464
SUPREME COURT REPORTS
[2018] 6 S.C.R.
4. As the decree was not satisfied, Thopamma, the decree-holder
filed an execution petition for enforcement of the decree of maintenance
passed in the aforesaid suit. On 28.9.1977, Thopamma filed an application
under Order XXI Rule 72 of the Code of Civil Procedure, 1908 (for
short, 'CPC') in Court to grant permission to bid at the time of auction of
the properties by the court in the execution case by setting off the claim.
The executing court permitted Thopamma to bid with respect to item
Nos.1, 7, 8 and 13 by setting off the maintenance amount. The
maintenance arrears had amassed to Rs.11,600/-.
5. On 5.10.1977, auction of the schedule properties was held and
Thopamma purchased item Nos.1, 7, 8 and 13 for Rs.10,185/-.
6. Siddagirigowda filed an application under Order XXI Rule 90
CPC on 16.11.1977. Father of respondent No.1, N.K. Giriraja Shetty
also filed an application under section 47 read with Order XXI Rule 90
CPC to set aside the sale held on 5.10.1977. On 5.1.1978 settlement
deed was executed between Siddagirigowda and Thopamma by which
item Nos.13, 5, 10 and 12 in O.S. No.245 of 1968 and Khasra No.12
(house) were allotted to Thopamma. However, no interest being claimed
on the basis of the deed, and its execution had been denied by the parties
to it.
7. On 31.3.1978, an application filed by Siddagirigowda was
dismissed as not pressed under Order XXI Rule 90 whereas the
application filed by N.K. Giriraja Shetty in execution case for setting
aside the sale was dismissed in default of appearance and sale was
confirmed in favour of Thopamma.
8. N.K. Giriraja Shetty suppressing the factum of filing of the
application under Order XXI Rule 90 read with section 47 and its dismissal
filed Suit No.109 of 1978 for the declaration of title and restoration of
possession in the Court of Civil Judge, (Junior Division), Nelmangala.
The suit was later on renumbered as O.S. No.85 of 1989. However,
sale certificate was issued by the executing court in favour of Thopamma
on 1.1.1979 and possession certificate on 29.1.1979 and possession was
delivered to her.
9. The plaintiff, N.K. Giriraja Shetty averred in O.S. No. No.85
of 1989 that he had bona fide purchased the property for a sum of
Rs.10,000/- on 9.11.1974. Possession was also delivered, entries were
made in the pahanies, he continued in possession till 1976. Thereafter,
A
B
C
D
E
F
G
H
465
defendant dispossessed him in the year 1976. Defendant promised to
hand over the possession as such the plaintiff did not take any action.
However, he entered into a deed of settlement in favour of his wife on
5.1.1978 of which he had no right. The title continued to vest with the
plaintiff. He prayed for mesne profits also. Plaintiff had later on amended
the plaint and averred that defendants have colluded with each other in
making the plaintiff to invest heavy amount for purchasing properties by
suppressing the fact that there was a charge of maintenance on the
properties in O.S. No.245 of 1968. He was a bona fide purchaser of
the property for value. Plaintiff prayed for a declaration that he was the
absolute owner of the scheduled properties, prayed for restoration of
possession and mesne profits also. A suit was filed with respect to survey
Nos.11 and 68/1 admeasuring 5 acres 39 guntas and 18 guntas
respectively.
10. In the written statement filed by Siddagirigowda, defendant
No.1, it was contended that sale deed dated 9.11.1974 was a nominal
sale deed executed on collateral security and that sum of Rs.10,000/-
was borrowed from the plaintiff, Siddagirigowda denied execution of
settlement deed dated 5.1.1978 between him and wife Thopamma. There
was a charge on properties in O.S. No.245 of 1968 which was decreed
and possession of the land was never given to the plaintiff.
11. Thopamma, defendant No.2 in her written statement denied
plaint averment and contended that scheduled property belonged to the
joint family of Siddagirigowda, denied the execution of settlement deed
dated 5.1.1978 and that it was not binding on her. She did not claim any
right in the suit schedule property under the said settlement deed. It was
contended that maintenance suit O.S. No.245 of 1968 was decreed and
there was a charge on the properties. The plaintiff was a friend and an
associate of her husband who was fully aware of the maintenance suit
and to defeat the maintenance claim, plaintiff and her husband in collusion
orchestrated a nominal and fictitious sale deed dated 9.11.1974. The
said sale deed was executed during the pendency of the lis and was hit
by section 52 of the Transfer of Property Act, 1882 (for short 'TP Act').
She had purchased the property through court auction in execution. Other
averments made in the plaint were also denied. On 19.10.1981 a
compromise petition was filed between the plaintiff and Siddagirigowda,
defendant No.1 wherein defendant No.1 sought withdrawal of the case
set up against the plaintiff in the written statement.
SIDDAGANGAIAH (D) THR. LRS. v. N.K. GIRIRAJA SHETTY
(D) THR. LRS. [ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
466
SUPREME COURT REPORTS
[2018] 6 S.C.R.
12. Defendant No.2, Thopamma, amended her written statement
on 5.3.1987 contending that the plaintiff was not an agriculturist. He
was a businessman dealing in cloth business, gold and silver jewellery.
Thus, he was not entitled to purchase agricultural land vide sale deed
dated 9.11.1974.
13. Thereafter, plaint was amended to set up the plea of the bona
fide purchaser for value which fact was denied by Thopamma in her
additional written statement. The plaintiff had the knowledge of the
pendency of maintenance suit of 1968.
14. On 23.6.1995, defendant No.1 took a somersault and filed a
counterclaim that sale deed was nominal and fictitious and he was ready
to get the reconveyance deed executed. The plaintiff filed objections to
the counterclaim that it was not maintainable, barred by limitation and
plaintiff was not entitled after entering into a compromise, to file a
counterclaim.
15. On 7.11.1996, Thopamma executed a registered deed of sale
for a consideration of Rs.2,20,000/- in favour of Siddagangaiah, defendant
No.3. Defendant No.1 died on 25.10.1998. Thereafter, Thopamma also
died on 17.2.2000.
16. The purchaser Siddagangaiah, impleaded defendant No.3 filed
a written statement in O.S. No.85 of 1989 contending that he was a
bona fide purchaser for value. Thopamma had purchased the properties
in the auction dated 5.10.1977. Sale certificate was issued and possession
handed over on 29.1.1979. The application under section 47 read with
Order XXI Rule 90 filed by the plaintiff was dismissed. Plaintiff had not
challenged the auction sale held by the court in favour of Thopamma.
Plaintiff was well aware of rejection of his application under Order XXI
Rule 90. He did not file an appeal against the said dismissal order and
filed a suit suppressing the fact, same was not maintainable.
17. The trial court by judgment and decree dated 5.1.2007
dismissed the suit. It was held that the plaintiff was not the absolute
owner of the properties and the application under Order XXI Rule 90
read with section 47 was dismissed. That order remained unchallenged.
The pleadings in plaint were silent with regard to the said application
filed as well as its dismissal, besides the adjacent owners were not
examined. Auction sale by Court was not questioned in the plaint. The
A
B
C
D
E
F
G
H
467
sale was hit by section 52 of the TP Act and the suit was barred by res
judicata. The plaintiff preferred an appeal being R.A. No.123 of 2009
in the first appellate court. The appeal had been allowed vide judgment
and decree dated 4.11.2011. The first appellate court held that lis pendens
was not applicable. There was confirmation of sale and charge was
created by fraud and collusion. The application under Order XXI Rule
90 was dismissed in default of appearance and not on merits by a
speaking order. Against the decision of the first appellate court, a regular
second appeal was filed and the same was dismissed vide judgment and
order dated 18.12.2014, hence the present appeal.
18. Shri Raju Ram Chandran, learned senior counsel appearing
on behalf of the appellants, urged that the suit was hit by the principle of
res judicata in view of the dismissal of the application under Order XXI
Rule 90 CPC read with section 47 CPC, it could not be said to be
maintainable. The application was dismissed on 31.3.1978 in default of
appearance. The auction sale held by the court had remained
unchallenged. It has attained finality. Separate suit for declaration and
possession could not be said to be maintainable.
19. It was also urged that the decree in favour of defendant No.2,
Thopamma attained finality and the dismissal of the application under
Order XXI Rule 90 operates as a bar on entertainment of the suit. The
plaintiff did not come to the court with clean hands and had suppressed
the material fact of dismissal of the application and auction held by the
court. It was however urged that the sale in 1974 was hit by lis pendens.
The property was purchased in 1974 whereas the suit was filed in 1968
by defendant No.2 regarding maintenance and for the creation of the
charge on the schedule properties. The sale was clearly subject to the
provisions contained in section 52 of the TP Act. Lis commenced from
the date of presentation of the plaint. The plaintiff could not be said to be
a bona fide purchaser without notice. He was aware of the suit being a
friend of the husband of Thopamma and had also filed an application
under Order XXI Rule 90. Possession was not handed over to him under
the so-called sale deed. The High Court erred in holding that the charge
was created on the date of the decree in the suit i.e., O.S. No.245 of
1968. The High Court has not correctly interpreted the provisions of the
Hindu Adoption & Maintenance Act, 1956 (for short, "the Act") nor the
provisions of the TP Act have been appropriately considered.
SIDDAGANGAIAH (D) THR. LRS. v. N.K. GIRIRAJA SHETTY
(D) THR. LRS. [ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
468
SUPREME COURT REPORTS
[2018] 6 S.C.R.
20. Shri S.S. Nagananda, learned senior counsel appearing on
behalf of respondents, contended that the charge was created only on
the date of the decree in O.S. No.245 of 1968 on 24.6.1976. There was
no charge on the date of execution of sale deed in 1974. Having regard
to sections 39 and 100 of the TP Act as the plaintiff was a bona fide
purchaser, the charge could not have been enforced against the properties
held by him. The absolute title was conveyed.
21. Learned senior counsel has also relied upon sections 27 and
28 of the Act so as to contend that it is only a decree which creates a
charge that too not against a bona fide purchaser. It was not open to
Thopamma to question the sale deed executed by the plaintiff. It was
further contended that the court held an auction on 5.10.1977 and
confirmed it on 31.3.1978 in a mechanical manner without a speaking
order, ignoring the sale deed dated 9.11.1974, decree holder was bound
to disclose to the executing court the factum of execution of sale deed.
The husband and wife had acted in collusion and fraudulently in order to
defeat the right of the bona fide purchaser for consideration. The decreeholder Smt. Thopamma had selectively chosen four items of the suit
property which included even the subject property purchased by the
plaintiff on 9.11.1974. As the sale was never questioned it was binding.
The dismissal of the suit by the trial court was illegal. The application
was dismissed under Order XXI Rule 90 in default. There was no
adjudication of same on merits. Thus, Smt. Thopamma failed to prove
that she got a valid title to the property under the court auction dated
5.10.1977 and confirmation of sale. Judgment debtor, husband had
challenged the decree in maintenance case of 1968 in appeal and stay
was granted subject to deposit of Rs.5,000/- which was not deposited.
Thus, auction so held could not be said to be valid. No fresh sale
proclamation was issued for holding an auction sale on 5.10.1977, it was
necessary to obtain fresh sale orders from the court. The sale was void.
As Siddagirigowda had no saleable interest in the property for which
auction was held by the court, non-compliance with the mandatory
procedure can be considered by the court suo-moto as held in Nani
Gopal Paul v. T. Prasad Singh & Ors. (1995) 3 SCC 579. The court
cannot be a mute spectator in view of the manifest illegality committed
while conducting the court sale. There are concurrent findings by the
first appellate court and High Court that the sale made in the execution
was fraudulent and collusive. No case for interference in the findings of
A
B
C
D
E
F
G
H
469
fact is made out. Husband of the decree-holder had withdrawn the
application under Order XXI Rule 90 on 31.3.1978. There were no other
bidders except Thopamma. The application under Order XXI Rule 90
filed by the plaintiff was dismissed for non-prosecution. The order was
not on merits. Thus, there was no bar on entertainment of the suit. The
claim of the appellant was false as the husband of decree-holder
Thopamma had filed a declaration in Form 7 claiming to be a tenant
under N.K. Giriraja Shetty which claim was rejected vide order dated
24.8.1981 by the Land Tribunal. It was held that there was no tenancy
and he had sold the property to N.K. Giriraja Shetty. Defendant No.1
husband of Thopamma had filed a compromise petition in favour of N.K.
Giriraja Shetty and later on filed a counterclaim that abated due to death
of Siddagirigowda and of his wife Thopamma, and none appeared to
prosecute the same. Section 18 of the Indian Evidence Act, 1872 (for
short, "the Evidence Act") had also been relied upon to contend that
after parting with the interest, no admission could have been made, and
there was non-compliance of Order XXI Rule 66 CPC, and filing of
application order under Rule 90 CPC by plaintiff would not constitute
admission of irregularities and they were not cured. The plaintiff was
entitled to the decree that has been rightly granted. No case for
interference was made out in the appeal.
22. The first question for consideration is whether owing to the
dismissal of the application filed under Order XXI Rule 90 by the plaintiff,
the present suit could be said to be maintainable. The fact is not in dispute
that after the court has held the auction, an application under Order XXI
Rule 90 was filed by the plaintiff, it was dismissed in default of appearance
on 31.3.1978. Order XXI Rule 90 CPC is extracted hereunder:
"[R. 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 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
SIDDAGANGAIAH (D) THR. LRS. v. N.K. GIRIRAJA SHETTY
(D) THR. LRS. [ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
470
SUPREME COURT REPORTS
[2018] 6 S.C.R.
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.]"
23. Sub-rule (1) of Order XXI Rule 90 makes it clear that when
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
ratable distribution of assets, or whose interests are affected by the sale,
may apply to the Court to set aside the sale on the ground of a material
irregularity or fraud in publishing or conducting it. As provided in subrule (2) of Rule 90 of Order XXI merely on the ground of irregularity or
fraud, the sale shall not be set aside unless the substantial injury has
been caused to the objector by reason of such irregularity or fraud and
such an objection should be the one which could not have been raised
before the date on which the proclamation of sale was drawn up as
provided in Order XXI Rule 90 sub-rule (3) and mere defect or absence
of attachment of the property shall not be a ground for setting aside a
sale. It is necessary to prove the substantial injury where fraud or material
irregularity has taken place whereby injustice had been suffered. It was
held by this Court in Rajender Singh v. Ramdhar Singh& Ors., AIR
2001 SC 2220 that mere inadequacy of price is not a ground for setting
aside court sale. In the present case, the application under Order XXI
Rule 90 was filed by original plaintiff which was dismissed for default in
appearance. It was nonetheless dismissal of the application so filed. It
was not a case set up that the decree passed in maintenance case was
obtained by fraud and substantial injury thereby has been caused.
24. Where an application has been filed under Rule 90 Order XXI
CPC to set aside a sale on the ground of material irregularity, and the
sale is confirmed under Rule 92(1) of Order XXI, the objector is precluded
by virtue of the provisions under Order XXI Rule 92(3) from bringing a
suit to set aside the sale on the same grounds as held in Brahayya v.
Appayya, (1921) 44 Mad. 351 = 62 IC 203 = AIR 21 Mad. 121, Ma
Saw v. Maung Kyaw, AIR 28 Rang 18; Nand Kishore v. Sultan, AIR
1926 Lah 165.
A
B
C
D
E
F
G
H
471
25. When the auction purchaser is the decree-holder himself and
when an application is made to set aside the sale on a ground other than
that covered by Rule 90 and no application has been made under Rule
89, the case would fall under section 47 as has been laid down in Superior
Bank Ltd. v. Budh Singh, (1924) 22 All LJ 413; Akshia v.
Govindarajulu (1924) 47 MLJ 549. Thus, it would depend upon the
grounds which are urged in the application. It is permissible to join a
claim to set aside a sale on the ground of material irregularity under
Order XXI, Rule 90 with a claim under section 47 for a declaration that
the sale is a nullity as the decree was passed after the death of the
judgment-debtor. Objection by legal representatives of deceased
judgment-debtor that suit land was ancestral property and sale was not
binding on them can be raised under section 47 read with Order XXI
Rule 90. However, it would depend upon the nature of the objection
whether it was covered under Rule 90 of Order XXI CPC or not. There
can be restoration of the petition dismissed for default filed under Order
XXI Rule 90 and thereafter if sale has been confirmed, it is provided
under Order XXI Rule 92(3) that no suit to set aside an order made
under Rule 92(1) shall be brought by any person against whom such an
order is made. Order XXI Rule 92(1) provides that where an application
has been filed under Order XXI Rule 89, 90 or 91, same has been
disallowed, the court shall make an order confirming the sale and
thereupon the sale shall become absolute, and no suit shall lie as per the
mandate of sub-rule (3) of Rule 92 of Order XXI CPC against whom
such an order is made. The order confirming the sale may be made
either where no application is made at all to set aside the sale or where
an application is made and disallowed may be that it is dismissed for
default. No suit shall lie in either case to set aside the order confirming
the sale. The refusal to set aside a sale is an order appealable. In case
the court has set aside or refused to set aside a sale that would include
a case where an application under Order XXI Rule 89, 90 or 91 has
been dismissed for default.
26. In the instant case admittedly an application was filed by original
plaintiff under OrderXXI, Rule 90 read with section 47, on the ground
that he was the owner of the land in question purchased by a sale deed
dated 9.11.1974 for a sum of Rs.10,000/- and was placed in possession.
He was not aware of the court sale. There was no beat of drums before
the auction was held. He was not aware of the execution proceedings.
SIDDAGANGAIAH (D) THR. LRS. v. N.K. GIRIRAJA SHETTY
(D) THR. LRS. [ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
472
SUPREME COURT REPORTS
[2018] 6 S.C.R.
He was a purchaser for value. The property was not correctly valued.
There were material irregularities in the conduct of the sale. Hardship
would be caused in case auction was confirmed. Thus, prayer was made
to set aside the auction sale. The aforesaid application had been
dismissed. Thus, Order XXI Rule 92(3) would operate as a bar for the
entertainment of the fresh suit on the ground so urged.
27. The plaintiff has totally suppressed the factum of court auction
sale and confirmation in the plaint and did not make any averment that
he had filed an application under Order XXI Rule 90(1) and it was
dismissed on 31.3.1978 whereas the suit was filed on 19.4.1978 after 19
days of the dismissal of the objection and confirmation of the sale. The
plaintiff has not questioned the auction so held by the court on the ground
of fraud or any material irregularity. He has claimed himself to be a
bona fide purchaser. That plea was also raised in the application filed
under Order XXI Rule 90. Dismissal of the same would preclude him to
file a fresh suit, it was incumbent upon him to question the court auction
on any permissible grounds necessary for the entertainment of fresh suit
but that has not been done. The grounds which were covered under
Order XXI Rule 90 cannot be raised in the instant matter. There is no
pleading of fraud or collusion raised in the plaint. Thus, the first appellate
court and High Court both have travelled beyond the pleadings to give a
finding that the auction sale was held fraudulently and in collusion. It is
provided in Order VI Rule 4 CPC that the plea of fraud, misrepresentation,
and collusion has to specifically set out in the pleadings before any finding
can be given on the same. There is no evidence on record for
substantiating the plea which itself was not taken, it has neither been
substantiated. Thus, the first appellate court and the High Court have
committed gross illegality by giving the finding with respect to fraud and
collusion of the decree-holder and judgment debtor in the court auction
so held.
28. The auction purchase made by decree-holder Thopamma had
attained finality. Confirmation of sale was not questioned by the plaintiff.
Thus, no relief could have been granted and the earlier orders have
attained finality and operate as a bar for the entertainment of the fresh
suit.
29. Coming to the question of lis pendens, Smt. Thopamma had
filed the suit in 1968 for the creation of charge of maintenance inter alia
A
B
C
D
E
F
G
H
473
on the properties in question. Explanation to Section 52 of the TP Act
makes it clear that pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the plaint. Thus, on the
date of execution of the sale deed on 9.11.1974, the suit filed by
Thopamma was pending. Thus, the provisions contained in section 52
would clearly apply to the case. In Nagubai Ammal & Ors. v. B. Shama
Rao & Ors. AIR 1956 SC 593 this Court observed:
 "9. On this question, as the plaint in O. S. No. 100 of 1919-20
praying for a charge was presented on 6-6-1919, the sale to Dr.
Nanjunda Rao subsequent thereto on 30-1-1920 would prima facie
fall within the mischief of section 52 of the Transfer of Property
Act, and would be hit by the purchase by Devamma on 2-8-1928
in the execution of the charge decree.
 Sri K. S. Krishnaswami Ayyangar, learned counsel for the
appellants, did not press before us the contention urged by them
in the courts below that when a plaint is presented in forma pauperis
the lis commences only after it is admitted and registered as a
suit, which was in this case on 17-6-1920, subsequent to the sale
under Exhibit VI - a contention directly opposed to the plain
language of the Explanation to section 52.