 Good afternoon friends to all those who are connected with us, not only on the Facebook, but as well as on this platform. The second part of the lecture series on attachment and sale of movable properties in execution, as we had committed on the previous session with Mr. SR Suryan Narayan Rao had shared his thoughts, knowledge and expressions on a very fascinating topic in respect of any lawyer practicing on the civil side would to learn the understanding of that because Order 21 itself is quite huge and execution itself. To understand you require to have her own concepts of the same. And today's session, as Mr. Rao had promised last time that there will be insights on the legal journey on these aspects as to how the attachment etc can be done in respect of various aspects as to in respect of agriculture produced salary etc and what is the takes once in the property is the public officer. What are the different aspects which one has to keep in mind as a decree holder and what are the different aspects which has to be considered by the judgment data. While we will move seamlessly during the thought process and the knowledge being shared by Mr. Suryan Narayan Rao, whose previous webinar is already doing very well on the Facebook as well as on the YouTube channel. Those who have missed it can always watch it on the YouTube since that has already been uploaded on the channel of Beyond Law CLC you can share, subscribe and like that channel. I think much time I would request Mr. Rao to take over and throw some light on this topic, which is quite enduring as well as interesting for all professionals and bankers etc over to you sir. Good afternoon friends. In my first session of talk, I spoke to you about how an attachment of immobiles has to be done under order 21 rule 54 CPC and the basic procedure to be followed for an attachment of immobiles. Now I move on to the next stage in the execution. After the property is attached, the next process is to bring the property to sale. So for bringing the property to sale, what is the procedure to be followed? We have got to look to order 21 rule 64. This is what order 21 rule 64 says. Any court executing a decree may order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree shall be sold and the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same. So therefore, while attaching the property, the court will not bestow its mind to find out whether the property attached would be in excess of the value of the property attached would be far in excess of the climb or not, the court will not go into that question at all. So therefore, the first thing that the court has got to find out is, if a large property is attached, the court is under an obligation to attach only such portion of the property which is sufficient to satisfy the decree. That is, if a large property is a measuring 100 feet by 200 feet of commercial space is attached and what is to be recovered is only about a lakh or lakh and 50,000 rupees, then the court will identify a particular portion of the property which would be sufficient to fetch the decree amount. And this is an obligation cast upon the court to make an inquiry and find out what portion of the property would be sufficient to satisfy the decree. This investigation the court will have got to make. In fact, the Supreme Court has said that there is an obligation cast upon the court to find out whether only a portion of the property is sufficient to satisfy the decree. Now, after the court is satisfied, the court will say whether the entire property is to be sold or a portion of the property has got to be sold that the court will have got to decide first. After the court makes a decision upon this question, the next stage is that there should be a proclamation of the sale. The proclamation is primarily intended to be circulated amongst a large portion of the area around the property concerned so that the sale may fetch a large number of intending bidders so that maximum price can be recovered at the sale of the property. So that is what has got to be done. Before issuing a proclamation, a notice will have got to be issued to the judgment data under Order 66 Rule 1. This is what the rule says, where any property is ordered to be sold by public auction in execution of a decree, the court shall cause a proclamation of the intended sale to be made in the long wage of the court. So first rule is the proclamation must be made in the long wage of the court. Next number two, such proclamation shall be drawn up after notice to the decree holder and the judgment data and shall state the place of sale and specify as fairly and as accurately as possible the following things. I'll come to it a little later. So therefore the first thing the court should do is it should issue a notice both to the decree holder and the judgment data. Notice to the decree holder is normally not required because he is represented before the court. A notice has got to be issued to the judgment data asking him to be present for fixing the terms of the sale. In fact, this particular form is contained in Appendix E and Forum number 28. Forum number 78 says that a date has been fixed for settling the terms of the proclamation of sale. So therefore the notice says, ask the judgment data to appear before the court on a particular date to fix the terms of sale. It is popularly called as sale notice. So therefore the judgment data has got to appear before the court and he has he can also furnish the particulars to be included in the sale proclamation. And the rule says that what are the things to be contained in the proclamation are the property to be sold or where a property where a part of the property will be sufficient to satisfy the decree such part. So therefore the correct description of the property should become contained in the proclamation. Then if the property is assessed to land revenue, the land revenue assessed on the property will have got to be stated. Then the third thing is if there are incomprehensives on the property that has got to be stated, then the exact amount due up to the date of sale will have got to be calculated and that amount will have got to be included in the sale proclamation. Every other particular which is necessary in order to find out the nature and value of the property will have got to be indicated in the sale proclamation. So therefore the all these particulars should be contained in the form of a verified statement. It should be verified like a pleading. This is normally called a verified statement filed by the decree holder and the judgment data also has an opportunity to file his own written statement verified statement on his behalf also. And the most important thing is the proclamation should contain the value of the property as made by the decree holder and the value of the property as made by the judgment data and it is not necessary for the court to put its own valuation in the proclamation also. And either of the parties can also request the court to appoint a commissioner to find out the value of the property. If a commission is appointed and he gives a particular value that value also can also be included in the sale proclamation. So therefore the most important thing is the service of notice under order 21 rule 66 if a notice is not served upon the judgment data as required under order 22 rule 66 the sale will be set aside. It will be an invalid sale. I would invite your attention to a decision of the Supreme Court reported in AIR 2008 to Supreme Court page 2161. This is what the court says each stage of sale is governed by the provisions of the court. For the purpose of the present case the relevant provisions are order 21 rule 54 and order 21 rule 66. At each stage of the execution of the decree when a property is sold it is mandatory that notice shall be served upon the person whose property is being sold in execution of the decree. And any property which is sold without notice to the person whose property is being sold is a nullity and all actions pursuant there to are liable to be struck down and quashed. So therefore the court further says service of notice on judgment data under order 21 rule 66 to unless waived by the appellant or judgment data or if he remains ex party is a fundamental step in the procedure of the court in execution. Judgment data 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 the value. Then they also say the absence of notice causes irremediable injury to the judgment data equally publication of proclamation of sale under rule 67 specifying the date and place of sale of the property under rule 66 to are intended so that the prospective bidders would know the value. So as to make up their mind to offer the price and to attempt that the sale of the property and to secure competitive bidders and fair price to the property is sold. So therefore the procedure is very important. So therefore this is how the sale proclamation has got to be drawn up and the sale proclamation is published in an identical manner as an attachment under order 21 rule 54 and the mode of proclamation is contained in rule 67. This is what rule 67 says every proclamation shall be made and published as nearly as maybe in the manner prescribed in rule 54 sub rule 2. So rule 54 sub rule 2 says how the proclamation has got to be published. It says it shall be proclaimed at some place on or adjacent to the property by beat of drums or other customary mode. A copy of the proclamation shall be attached on a conspicuous part of the property and then upon a conspicuous part of the courthouse and also where the proclamation is land revenue paying land revenue to government in the office of the collector of the district in which the land is shared and where the property is land situated in a village also in the office of the grand panchayat if any having jurisdiction over the village. So therefore, in all this, there should be a publication by beat of Tom Tom, there should be a publication by a fixing the copy of the proclamation at various places as detailed in order 54 rule 2. So therefore, and the most important thing is the date and the place of sale and the time of sale will have got to be clearly mentioned in the sale proclamation. So therefore, this procedure will have got to be followed. In fact, as per the time and date of sale is concerned, a specific provision is made under order 21 rule 68. The rule clearly says, save in the case of property of the kind described in the proviso to rule 43, no sale here and a shell without the consent in writing of the judgment data take place until the expiration of 15 days in the case of immobile property and at least seven days in the case of mobile property calculated from the date on which the copy of the proclamation has been affixed on the courthouse of the judge ordering the sale. So therefore, see when once there is a proclamation, the sale cannot be held within 15 days from from the date of the proclamation. So the date of the proclamation is considered as the date on which the proclamation is affixed on the notice board of the courthouse. So therefore, there should be clear gap of 15 days between the date of proclamation and the date of sale and in the case of mobile's this period is only seven days. So therefore, if the date of sale is fixed, everything is fixed. Can there be an adjournment of the sale? When once the sale is fixed and in such a situation, the judgment data or the decree folder can apply to the court to have the sale adjourned. In many cases, it would happen that the judgmentator will request the court that he has made arrangements for a private sale of the property which is going to take place and the amount of money that I would be realizing from the sale would be deposited in the court. A court sale would not fetch as much money as would be as a private sale would fetch. Therefore, the judgment data may also request a postponement of the sale. So if a sale is adjourned, for not beyond 30 days, a press proclamation is not required. So therefore, whenever a sale is adjourned, a seasoned judge would always say sale adjourned to such and such a date. The court officer is directed to inform the intending bidders. This particular order must be passed along with the order of adjournment to the sale because what happens is when once a proclamation takes place, the intending bidders will come to the spot to participate in the sale. Suppose the sale does not take place on the day and it is adjourned. The intending bidders will not be informed of the sale of the adjourned date. Therefore, the judge will have got to take caution to see that the intending bidders are not misled. So therefore, after the sale is adjourned, for a time not beyond 30 days, the court will have got to further instruct the officer in charge of the sale to go to the spot and inform the intending bidders about the adjourned date of sale. Suppose the sale is adjourned beyond 30 days. If the sale is adjourned beyond 30 days, normally a fresh proclamation is required. Normally a fresh proclamation is required. And if the judgment data in such a case can waive the proclamation also. Suppose the sale is adjourned beyond 30 days at the request of the judgment data. The court can say if you want the sale to be adjourned beyond 30 days, you may waive the proclamation. And the intending bidders will also be informed. So therefore, if the judgment data waives a fresh proclamation, then a sale can be adjourned beyond 30 days and a fresh proclamation would not be required. This is what is contained in Rule 69 of Order 21. Then as soon as the sale is held and the bidder, the highest bidder is accepted by the court officer. The purchaser of the auction sale will have got to immediately deposit with the court officer 25% of the bid amount. And then he will have 15 days time to deposit the balance of sale consideration, that is the rest of the 75% of the amount. Therefore, the deposit of 25% of the sale price or the fall of the hammer with the officer in charge of the sale is a mandatory provision. Suppose it so happens, the 25% is deposited and the purchaser fails to deposit the balance of 75%. Before 15 days, then in such a situation, the sale automatically gets cancelled and the purchaser who has deposited 25% of the amount will have got to meet the entire cost of the fresh sale. And after deducting this amount, the balance of amount will only be refunded to the defaulting auction purchaser. That is contained in Rule 71 of Order 21. Now, sometimes it happens that the judgmentators are very powerful persons in the village. Nobody would come before the court officer and purchase the property because the judgmentators successfully prevent the intending bidders from participating in the sale. In such a situation, the decree holder himself can actively participate in the sale and purchase the property by himself. And that provision is contained in Order 21 Rule 72. Order 21 Rule 72 says that a decree holder cannot purchase the property without the permission of the court. So therefore, before a sale is held, he will have to make an application to the court, requesting the court to grant him permission to participate in the sale and purchase the property at the auction. The court may permit him to purchase the property and put him on terms. The court says that the minimum bid that the decree holder can offer is this much of amount. The court can put that condition also. And when the court grants him the permission, he can participate in the sale. And it is obvious that a decree holder has got to receive money from the judgmentator. And he can also make an application to the court under the very same provision to request the court to set off the decree amount against the sale price. So therefore, if the decree amount is say about 10 lakhs of rupees and the property is sold for 11 lakhs, then deposit of 25% at the time of the sale with the court officer would not be required. And further, while paying the balance, only 1 lakh of rupees is deposited, that would be sufficient compliance. Therefore, two applications will have got to be filed by him. One for a permission to bid and another for setting off the bid amount, a decree amount against the sale price. So therefore, if an application is not filed and if the decree holder bids at the sale, that itself would be sufficient for setting aside the sale. Now, I would invite your attention to two decisions in this behalf. A decision of the Karnataka High Court reported in 1986, one Mysore-large journal, page 104. In this case, the court has said that the publication at all four places as mentioned in order 21 Rule 54 is mandatory. If a publication is not made in any one of the places as required by the rule, that would be sufficient to set aside the sale. Now, the second decision that I would invite your attention is a decision of the Karnataka High Court reported in 2014, two cases here, page 17.05. The court has said that the executing court has failed to find out as to whether the valuation furnished by the judgment data as per the memo dated 462005 had been indicated in the sale proclamation or not. And on account of not indicating the sale price has resulted in substantial injury to the judgment data. So therefore, the price as indicated by the judgment data was not put in the sale proclamation. That was found to cause injuries to the judgment data and on that ground also the sale was set aside. That apart, one other curious fact which cannot go unnoticed is decree holder having sought for permission to participate in the bid was the only bidder who participated in the court action conducted by the executing court through the plaintiff. Undoubtedly, when the court sale has been fixed by the executing court, no notice had been issued to the bidders to participate in the spot action. So place of picture prescribed under this sub rule are not alternate places and they are in addition to each other. So therefore, the valuation stated by the judgment data and also the decree folder must be clearly stated. Then normally what happens is the sale is held at this spot and the final bid should always be offered before the presiding officer. So therefore, the court normally gives two dates. One is sell at spot on a particular day, call in court for final bid on a particular day. So therefore, the auction purchaser will have got to appear before the court on the day fixed for offering the final bid and should offer the final bid to the presiding officer also. And the presiding officer has an option either to accept the bid or reject the bid. The court may look at the nature of the property sold. Suppose the court feels that the property consists of buildings and of great value and the property is offered for sale and the highest bid was a paltry sum. The court says the court is under an obligation to protect the interest of the judgment data also. The court can still say even if in the absence of any objection by the judgment data, the court can apply its mind to the facts on record and say that I do not accept the bid and there should be a fresh sale of the property. And if the court accepts the bid, then in such a situation, the auction purchaser will have to deposit the 75% of the balance of sale price. In fact, in one case before the Karnataka High Court, it so happened that the 25% of the bid amount was deficit by about 10 paisa only. So therefore, the sale was challenged before the High Court. When the sale was challenged before the High Court, number of arguments were advanced on behalf of the judgment data for setting aside the sale. And the court did not accept any one of those arguments for setting aside the sale. It so happened that the trial court lawyer had written a postcard to the appellate court lawyer saying that the deposit of 25% of the amount was deficit by 10 paisa only and this point may be urged before the High Court. In fact, the appellate lawyer took out this card and said, my lord, the person who was appearing before the trial court has asked me to put this point before the court that the 25% of the bid amount, which was deposited by the auction purchaser was deficit by 10 paisa only. The court said that is the strongest point, the court accepted that point and set aside the sale. So therefore, these factors have got to be clearly analyzed and kept in mind. And there is also one other provision that is order 72 capital A says that even a person who holds a mortgage of the property and that encumbrance is also noted in the sale proclamation. When he wants to purchase the property, he cannot purchase the property without the permission of the court and he has got to apply permission, obtain permission of the court. The court may grant him permission on terms and then only he can participate in the sale and purchase the property in court auction. So therefore, and the final bid, always we must be presiding officer and that is what the court, the Karnataka High Court has said in a decision reported in 1982, one Karnataka law journal page 357. In some cases, it has so happened that a final decree is that a final bid is offered not before the presiding officer, but before the officer conducting the sale. And in majority of the cases, the court has come to the conclusion that such an offer made by the before the court officer in charge of conducting the sale would not answer the requirements of law and have set aside the sale. In fact, there are also few chance decision which also say that a person appointed by the court for conducting the sale almost represents the presiding officer of the court and therefore in some situation this deficiency in the procedure of conducting the sale was overlooked by the court and the sale is also confirmed. Then the Karnataka High Court has said that where permission to bid is not obtained by the decree holder, it would result in the sale being set aside. There's a decision reported in ILR 2000 Karnataka page 840, then with regard to the deposit of the amount at the fall of the hammer, the court has said that a meaningful reading of the provision is required. In fact, what happened was in the case before the Karnataka High Court reported in 2007 to Karnataka Law Journal page 321, the court has said that deposit of 25% of the bid amount under order 21 rule 81 CPC should be meaningfully read. The sale in this case was conducted at 4 PM, deposit made by the purchaser the next day as permitted by the court would satisfy the requirements of law. So in this case what had happened was the bank by the time the final bid was accepted, it was actually 4 o'clock and therefore the banks were closed and therefore the court permitted the auction purchaser to deposit the money on the next day. This is what they say, in fact, this is a decision of the Supreme Court reported in 2007 to Karnataka Law Journal. This is what the Supreme Court says, having regard to the fact that the appellant has explained that it was not possible for the predecessors or in interest to deposit 25% of the amount immediately after such declaration as the banks at that point of time, the banks were closed and furthermore having regard to the fact that presumably the court in that view of the matter had directed the auction purchaser to deposit the amount next day, we are of the opinion that it satisfies the requirement of the court. So therefore it has got to be read and there is one other decision of the Supreme Court where this point was considered that is here you are 2013 Supreme Court page 24, purchaser cannot be expected to pay the amount in cash on the fall of the hammer. So the court says immediately after the extent of the bid 25% of the amount will have got to be deposited. So on the fall of the hammer he didn't pay the amount, payment of 25% of the bid amount by way of a draft on the date of sale itself is sufficient compliance with order 21 rule 84. So therefore, see the amount was deposited, not on the fall of the hammer, but after within the court hours on that day by way of a draft. So therefore the court holds that on a meaningful reading of the provision, it would comply with the requirements of law and the sale would not be set aside on that ground. Now the time for deposit of the money is contained in rule 85 and the judgment data can also approach the court for private sale of the property and that request can be made under rule 80. And he can say that I will sell the property without any encumbrance and in such an event the court can direct the intending purchaser to deposit the money, entire sale proceeds in the court for payment of a sum recoverable to the decree holder and the balance may be refunded to the judgment data. Therefore that provision is contained in order 21 rule 83. So then the sale is held. Then what are the options open to the judgment data to have the sale set aside. There are two options left to him. This is one option is an application under order 21 rule 89 for setting aside the sale and another option for making an application under order 21 rule 90. So under order 21 rule 89 see the decree holder is required to deposit the entire sale amount as mentioned in the sale proclamation in addition 5% of the final bid. And this is what the rule says where immobile property has been sold in execution of a decree. Any person climbing an interest in the property it need not be only the judgment data. Any person climbing an interest in the property sold at the time of sale or at the time of making the application or acting far on behalf of the interest of such person may apply to have the sale set aside on his depositing in court for payment to the purchaser. A sum equal to 5% of the purchase money that is the bid amount. Then for payment to the decree holder the amount specified in the proclamation of sale as that for the recovery which the sale was ordered less any amount which may since the date of sale proclamation of sale has been received by the decree by the decree holder. So therefore if in fact he need not state anything about the informities of the sale. All that he has got to do is deposit this amount file an application for setting aside the sale. The court has no option but to set aside the sale and there is one rider for making an application. Suppose he has made two applications. One application for setting aside the sale under order 21 rule 89 having deposited the amount. Another application for setting aside the sale on the ground of material irregularity or fraud in the conduct of sale. Then if he wants to press the application under order 21 rule 89 he has got to first get his application under order 21 rule 90 dismissed has not pressed. So he cannot press both the applications he can only press either an application under order 21 rule 89 or an application under order 21 rule 90. And the most important thing is that one has got to file this application within 60 days from the date of sale. So this is the most important thing and the rule says that the deposit of the amount must be either simultaneously with the filing of the application or 21 rule 89. Or before filing such an application and if the money is deposited subsequent to the filing of the application order 21 rule 89 some courts have held that an application order 21 rule 89 is not maintainable. In fact we can read article 121 134 127 one minute article 127 of the Indian limitation act to set us to set aside a sale in execution of a decree including any application by the judgment data 60 days from the date of sale. So it should be 60 days from the date of sale. And the most important thing one has got to keep in mind is section five is not applicable to order up to applications under order 21. In fact, the opening words of section five will have got to be clearly kept in mind. This is what the opening words of section five of the Indian limitation act says any appeal or any application other than an application under any of the provisions of order 21 of the court of civil procedure 1908. So therefore, except any application under order 21. Suppose if no application is made within 60 days from the date of sale, the sale gets confirmed automatically and the judgment data is completely barred from rising any plea for requesting for the sale being set aside. So therefore, one has got to be very careful. The application has to be filed within 60 days and the amount has got to be deposited within 60 days. In fact, earlier the provision with regard to deposit of money was actually 30 days. The limitation was for filing an application was 60 days and for deposit of money it was 30 days earlier before the amendment. Now 60 days both for deposit of money and also for filing an application under order 21 rule 89 or 90. So therefore, the one has got to be extremely careful. In fact, I would invite your attention to a decision of the Karnataka High Court reported in 1995, five Karnataka Law Journal page 631. This is what the decision says. The limitation for filing an application for setting aside the sale under article 127 of the limitation act is 60 days from the date of sale. For this reason, sale cannot be confirmed before the expiry of 60 days as the affected party is entitled to file objections to the sale and apply to set aside the sale within that period. In this case, what happened was that no application was made either under order 21 rule 89 or rule 90. But the court did not force the case after 60 days from the date of the sale. The case, a date was given within 60 days from the date of sale and the sale was confirmed. So therefore, the High Court has said within 60 days, the trial court had no jurisdiction to confirm the sale because the judgment data had an option to file an application within a period of 60 days and therefore the sale could not be confirmed within 60 days. Then the Supreme Court has said in 1994, Supreme Court cases 417. This is what the Supreme Court has stated. I would point out a few sentences in this judgment of the Supreme Court. The application under order 21 rule 89 of the court being an application under the provisions of order 21. Section 5 of the limitation act on its own language is not applicable specifically. We are thus left with the question whether section 148 of the court would be applicable to the present case or not. Again, section 148 of the court would not be applicable to the present case for the simple reason that the time for making an application under rule 89 of order 21 of the court is not fixed by the court. So if the time is fixed by the court, it can be extended under 148. If the time is statutorily fixed, the time is not fixed by the court, therefore it cannot be extended. That's what the Supreme Court has said. Then they say that the High Court was thus right in coming to the conclusion that the executing court had no jurisdiction whatsoever. To entertain the application purporting to be under order 21 rule 89 of the court after the period of limitation prescribed under section 127 of the limitation act. So therefore these provisions will have got to be very clearly kept in mind and one has got to act very swiftly immediately after the sale is held. And the judgment data must be very cautious after the sale is conducted. Then I invite your attention to another decision of the Karnataka High Court reported in ILR 1995 Karnataka page 1464. The deposit of the amount under order 21 rule 89 within 60 days from the date of sale should precede the application for setting aside the sale as no application under rule 89 can be made without depositing the amount in court. Further the words of the statute being clear, explicit and unambiguous, there is no scope to have recourse to external aid for its construction. So therefore this is another very important aspect of the matter which we have got to clearly keep in mind to protect the interest of the judgment data. Then this other provision which enables the judgment data to seek the sale being set aside is under order 21 rule 90 and there are we have got to read the rule very carefully where any immovable property has been sold in execution of a decree. The decree holder or the purchaser or any other person entitled to a share in the rateable distribution of assets or whose interests are affected by the sale. It is not merely the judgment data the other people who have for interested in the property may apply to the court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting the sale. So therefore the material irregularity or the fraud must be in the conduct of the sale proceedings. Normally the usual attack is firstly by saying that there is no notice to the judgment data under order 21 rule 66 that is first. Number two, there was no public proper publication at all. The proclamation was not made in all these four places and it can also be stated that in the sale proclamation sometimes it happens that the time is left blank or the date is left blank. So many things happens in the in the proclamation so therefore one has and the bid is not offered before the court within 15 days the final bid and the amount is not also deposited within 15 days from the date of sale. And there may be some collusion between and you can also examining the intended bidders to say that we are prepared to purchase the property. We did not know about the sale of the property we are prepared to purchase the property for say a particular amount which is much more than the amount for which the final bid has been accepted. So if all these facts will have got to be established by leading sufficient evidence before the court and it could be sometimes if the defect in the procedure is apparent on the face of the record evidence may not be required. And where you appear for the decree folder to meet the climb of the judgment data, it would be necessary to examine the officer conducting the sale. So therefore the officer conducting the sale will have got to speak about the actual procedure that was followed and the compliance with order 21 rule 66. So therefore the if all these things are clearly made out then a sale would be set aside and there is one very important thing which has to be kept in mind that is you prove either material irregularity or a fraud that itself is not sufficient. You will have to further prove that the judgment data sustained substantial injury by reason of the irregularity or fraud. So therefore, if the substantial injury is not proved, the substantial injury is normally the value of the property actual value of the property and the value for which the property is sold. If the difference is a very big bridge, then in such a situation the judgment data has suffered substantial injury. So this is what is contained in sub rule 2 of order 90. This is what says what the rule says no sale shall be set aside on the ground of irregularity or fraud. In publishing or conducting it unless upon the facts prove the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. No application to set aside the 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. So therefore, if the judgment data had an opportunity to rise these objections at the time of settling the terms of proclamation, he cannot subsequently complain about it. In fact, I would say, suppose the property is a very large property. The whole property was brought to sale and the judgmentator did not complain at the initial stage. In his application under order 21 rule 90 he said that a small portion of the entire property would have been sufficient to fetch the decree amount and the entire property has been sold. There's an obligation cost upon the court to find out what portion of the property would have been sufficient to realize the amount the climate by the decree holder. Therefore, on that ground the sale should be set aside. The court has said you had an opportunity to participate in fixing the terms of the sale proclamation. You should have made a request to the court that only a portion of the property should have been sold. You have not made that request at the right time and therefore you cannot complain later. Suppose the value of the property as stated by the judgment data is not put in the sale proclamation. If the judgmentator had an opportunity, did not give the value at all. If he did not give the value at all and if it was not mentioned in the proclamation for sale, he cannot complain about it later. In fact, the entire law has been discussed by the Karnataka High Court in a decision reported in ILR 2017 Karnataka 2164. In this case, the court came to the conclusion that material irregularity and fraud were proved. But the court refused to set aside the sale only on the ground that substantial injury to the judgment data was not proved. In fact, the court said what emerges from the above set facts and circumstances and the sequence of events taken place before the trial court is. If at all, the property was auctioned for a throwaway price or the court sale was held at a throwaway price. Nothing prevented the judgment data from filing one such application on the date of court sale with reference to the market value of the property at 1.75 crores. This clearly establishes that though the judgment data had sufficient opportunity, he has not made use of the same and not furnished any details with regard to the market value of the property as on the date. Therefore, the judgment data is not entitled to file an application under order 21 rule 90 CPC on that particular ground in view of the proviso to the set subsection. Then paragraph 33 is what the court says. Although this court is of the opinion that there is material irregularity in conducting the sale, but there is no sufficient injury established by the appellant. The order impugned under the appeal is not liable to be interfered with and the sale cannot be set aside. So therefore this was a case where the court came to a conclusion that there was in fact material irregularity in the conduct of the sale. The court said as regards the value of the property, no evidence was placed before the court and the valuation was not stated in fixing the terms of the sale proclamation also. Therefore, the court said the judgment data had not established substantial injury and therefore he cannot, his climb for setting aside the kill cannot be sustained. So therefore, when an application for setting aside the sale is dismissed or where no application is made for setting aside the sale under 21 rule 89 or 21 rule 90, the sale becomes absolute. We have got to be confirmed on confirmation the sale becomes absolute. You may read carefully rule 92. This is what rule 92 says where no application is made under rule 89 or 90 or rule 91 where such application is made and disallowed. The court shall make an order confirming the sale and thereupon the sale shall become absolute. This has got in fact the I will come to another decision of the Supreme Court where they have made some distinction between sale becoming being confirmed and sale becoming make a reference to it at a later time. And there is also one other provision where an auction purchaser is also given an option to seek the sale being set aside. Suppose the sale is held, the amount is deposited by the auction purchaser. It so happens subsequently he discovers that the property does not belong to the judgment data at all. Then what is it that the decree holder should do? The auction purchaser should do in such a situation the auction purchaser himself can make an application for setting aside the sale and that provision is under order 21 rule 91. The purchaser at a sale in the execution of a decree may apply to the court to set aside the sale on the ground that the judgment data had no saleable interest in the property sold. So this is one important factor which has to be kept in mind. In fact, a sale of the property can take place even without an attachment. The attachment is affected only in order to prevent the judgment data from dealing with the property from the date of the attachment up to the date of sale. Suppose no attachment is made or there is a defect in attachment, let us suppose. And the sale is conducted. The ground that there is any defect in the attachment would not by itself be a ground for setting aside the sale. In fact, if there is a defect in attachment, the judgment data could sell the property at any time before the court sale. And that court sale would take preference. If he has not sold the property from the date of the attachment, which is later found to be irregular up to the date of sale, then a defect in attachment would not be sufficient to make a claim for the sale being set aside. So these things under there is one other thing. Suppose the sale takes place today. There is an application under order 21 rule 89 or under order 21 rule 90. The sale is many times confirmed. There could be an appeal to the high court. There could be an appeal to the Supreme Court. The sale many times get confirmed several years after the sale is held. In such an event, what is the date on which the purchaser has acquired title. The further, we may make a reference to section 65 of CPC. This is what section 65 says where immobile property is sold in execution of a decree and such sale has become absolute. The property shall be deemed to have vested in the purchaser from the time when the property is sold and not the time when the sale becomes absolute. So therefore, the property is deemed to have vested in the purchaser on the date of the sale, not on the date on which the sale is confirmed. In fact, in one of the cases in which I appeared, it so happened that a sale was held and confirmation took place a few years thereafter. In the meanwhile, a portion of the property was acquired for widening a national highway. And therefore, the judgmentator has said that the property is acquired, therefore set aside the sale. He also said that the confirmation of the sale having taken place long after the final notification for acquisition, I am entitled to receive the compensation money. Therefore, the compensation money of about 35 lakhs he climbed was to belong to him and it has got to be paid by the national authorities. When I pointed out that under section 65, the date on which the property was in the auction purchaser is the date on which the sale is held and not on the day on which the sale is confirmed. Therefore, the court upheld my contention and held that the auction purchaser was entitled to the compensation amount because the property vested in him on the date of sale and not on the date of confirmation of the sale. And in fact, the sale certificate should actually give the date is the date of the sale certificate will be the date on which the property is sold and not on the date on which it is confirmed. So therefore, this, then a certificate after the sale is held, a certificate is granted to the purchaser. In fact, it is contained in rule 94, where a sale of immobile property has become absolute. The court shall grant a certificate, specifying the property said, and the name of the person who at the time of the sale is declared to be the purchaser such certificate shall bear the day on which the sale became absolute. The certificate will say that the sale is made become absolute on this particular day. In fact, every high court has made certain rules called the rules of practice along with the rules of practice will have got to be read along with the provisions of this will procedure code under the Karnataka rules of practice. A copy of the sale certificate will have got to be sent to the sub register also for for registration, even without an application being made by the auction purchaser and it gets registered and therefore the the encumbrance will actually disclose the name of the auction purchaser in the encumbrance certificate also for that purpose, it would be necessary to have the sale certificate register. In fact, in Karnataka civil rules of practice, the procedure has been clearly stated as to how it has got to be registered. In regard to this rule, then after you get a sale certificate, then what we have got to do is we have got to apply for possession of the property. So where the judgment data is in actual possession of the property, the court will deliver actual possession of the property to the auction purchaser. See what is done is you file an application for delivery of possession and that is normally registered as a miscellaneous case and the court issues a delivery warrant. And if the property is in actual possession of the judgment data, the court officer will deliver possession to the auction purchaser. Then what is the limitation for filing an application for delivery of possession? If the provisions of section 100 article 134 will have got to be clearly read for delivery of delivery of possession by a purchaser of immovable property at a sale in execution of the decree one year when the sale becomes absolute. So therefore the date on which the sale becomes absolute within that date, we will have to make this application for delivery of possession within one year. If and therefore the, in fact, suppose you have not applied for a sale certificate at all and the time is about to expire within three or four days. The Supreme Court has said and our high court has also very clearly said production of a sale certificate along with an application for delivery of possession is not an essential requirement. You can make an application for delivery of possession within time and produce a sale certificate later it does not matter. But if you don't make an application within one year, you lose your right to approach the executing court for delivery of possession and that would be and it would take a long time for you to get possession of the property. Now I would invite your attention to two decisions. One is decision reported in 2014, three KCCR page 2009. In fact, in this decision, a very copious reference has been made to a large number of previous judgments and the court has said limitation for an application to set aside a sale is 60 days from the date of sale. Limitation for an application for delivery of possession after confirmation of sale is one year from the date of confirmation of sale. In fact, it is not necessary for the auction purchaser to wait for issue of a sale certificate to apply for delivery of possession. And therefore the date on which the sale certificate is granted is immaterial in computing the period of one year for applying for delivery of possession. Then there is another decision in 2004, three KCCR 2056. Suppose this also contains another provision which says suppose you don't make an application for delivery of possession within one year, then what should be done? This is what is stated by Justice Kumar in this 2014 decision and I would only draw your attention to only a portion of this judgment. This is what the head note says, for the auction purchaser to apply for delivery of possession, the period of limitation is one year from the date of confirmation of sale. If an application is not filed within one year, the auction purchaser can file a suit for declaration of title within a period of 12 years from the date of confirmation of sale and such a suit is governed by Article 65 of the Limitation Act. So therefore, see the summary remedy of getting possession would be lost. You will have to, in fact, by getting a certificate, sale certificate from the court, you have become the owner of the property. You have become the title holder for the property in question. Then, because you are the owner of the property and because you have lost your right by not applying within a period of one year on the execution side for delivery of possession, you can file a suit for declaration of title and possession and that would be governed by Article 65 of the Limitation Act. And therefore, 12 years period will have got to be reckoned from the date of confirmation of sale for filing a suit for declaration of title and possession. Then I would invite the one decision of the Supreme Court. They make a distinction between the sale becoming absolute and the sale being confirmed. In fact, I would, I will read a particular portion of the judgment and make a comment upon the judgment. In fact, in this case, I would draw your attention. The judgment data before the executing court had filed two applications. One application under order 21 is what the, what the head nod says. The judgment data had filed two applications to set aside the sale alleging that the property was sold for a lower price. As a result of which, substantial injury was caused to him and another application for appointing advocate commissioner to assess the value of the property. As against the order dismissing the second application, the judgment data had filed a revision in CRP 2829 bar 2002. So long as the said revision was pending, the court auction sale was yet to become absolute, yet to become absolute. For the sake of arguments, assuming that the said revision was allowed, then in that case, the court auction sale would have been set aside on the ground that the property is sold for a lower price. Therefore, till the revision in CRP in 2829 of 2002 was disposed of in one way or the other, the sale was yet to become absolute. We noted that in article 134 of the limitation act, the legislature has consciously adopted the expression when the sale becomes absolute. So therefore, time has got to be computed from the time when the sale became absolute. So therefore, not when the sale became was confirmed. So therefore, the Supreme Court has said that time will not to be reckoned, not from the date on which the sale is confirmed, but on the date when the application revision petition before the high court was disposed of. And therefore, the court held that the application was in time. In fact, as far as this decision is concerned, we can again go back to section 92. In fact, if you read the entire decision, the wordings of section 92 has not been properly appreciated by the Supreme Court. In fact, the wordings very clearly says that the court shall make an order confirming the sale and thereupon the sale shall become absolute. So therefore, immediately on confirmation, the sale becomes absolute. In fact, therefore, the court has not applied its mind to the wordings of section 92 and even if therefore the date of confirmation is the date on which the sale became absolute. And so that was the case. The sale became absolute. And for that reason, the revision should have been disposed of as having become infractuous and the revision before the high court could not have been considered at all because the sale on being confirmed had become absolute. The question of appointment of a commissioner did not arise at all. So therefore, so this decision, according to me, requires a relook and the provision of order 21 rule 92 has not been clearly looked in, not clearly placed before the high court at the time when the matter was argued. And therefore, this argument that is submitted by me now has that line of argument was not put before the Supreme Court. Therefore, it was not considered. Then I would refer to one more decision that is reported in 2014, three cases here, page 2009 limitation for an application to set aside a sale is 60 days from the date of sale. Limitation for an application for delivery of possession after confirmation is one year from the date of confirmation of sale. It is not necessary for the auction purchaser to wait for issue of a sale certificate to apply for delivery of possession and therefore the date on which the sale certificate. In fact, I made it. I made a reference to the decision. I'm sorry. In fact, the Supreme Court has said in one decision where the sale is confirmed. A lead is put on the entire proceedings and the judgment data cannot raise any objection in regard to the confirmation of the sale. So this is 2011 one case is here short notes page 13. It's a decision of the Supreme Court. And this is what the Supreme Court has said bar confirmation of sale bar to challenge to where the confirmation of sale hearing in favor of the decree folder can be can be re agitated. It can be re agitated whether whether the confirmation of sale hearing in favor of the decree holder can be re agitated by filing fresh objections held no in perseverance to which a sale certificate was issued and the same were upheld by the executing court high court and the Supreme Court does finalizing the sale. The question of sale cannot be re agitated by filing fresh objections. Therefore, the this is what is stated by the Supreme Court, then there is one other thing. In fact, what happens is in execution proceedings when we seek delivery of possession. More often than not many judges order issue of a notice and if notice is issued, and if the judgment data appears before the court and file subjections unnecessary objections for the petition, it would take some time to get delivery of possession. In one case it so happened that there was eviction decree passed by the court. I applied to the executing court for delivery of possession. The court under order 21 rule rule 13 I think it is 13. It issued a cause notice to the judgment data upon the execution petition was filed within two years. So therefore when the execution petition was filed within two years, the wordings used is the court may not direct issue of a cause notice. The court issued a cause notice I said in special circumstances a cause notice is required in a case where I seek delivery of possession where there is no stay order by the any superior court delivery of possession will have got to be ordered. Then the court refused my request and therefore a repetition was filed before the honorable high court where the court said under order 21 rule 22, it was not necessary for the court to have issued a cause notice and directed the trial court to proceed further without issuing a cause notice. It set aside the order of the court. So therefore on an application under for execution for delivery of possession. If it is filed within two years from the date of the decree, a cause notice is unnecessary and the executing court can directly issue a delivery warrant. And that's what the court has said in an unreported decision cannot I court WOP 3572 bar 2007. So therefore I have covered the gamut of the sale and delivery of possession in this lecture. I hope I have made my points very clear. And if there are any questions I will be prepared to answer those questions. Thank you for giving me a patient. So it was as usually very elucidatedly explained. And they all understood. Two, three questions have boarded on the platform. Please, please ask. Why is an exclusive wife is an exclusive self acquired property can attach for has been set. It can't be frame it. Why is the wife has a self acquired property. Which is exclusively hers. Can it be attached for husband steps. It can't be done. It can't be done. It, the editor is only the husband. And there is no vicarious liability for the wife to pay the amount. Therefore the property cannot be attached. This is by Mustafa what if the court accepts the bid, but the judgment data does not accept the bid for it being of lesser value. The question of the judgment data accepting the bid does not arise. When once the bid is accepted by the court, it is sufficient. The judgment data can only challenger the sale by making an application under all 21 rule 18 and rule 90. She has no option for I for accepting the bid or rejecting the bid. It is not the ball is not in the court of judgment data. In terms of that, then we will have to pay the full amount, which is of the degree or at the 15% of that amount. Full amount noted in the sale proclamation, but plus 5% of the 5% that is what is called solution 5% of the sale price that would be the solution to be paid to the auction purchaser. The exact the total amount will have got to be deposited. So auction purchaser file petition after a long time that is after more than one year honorable court ordered for delivery of the procession. What is the remedy for the judgment data? The judgment data can challenge the order before the high court by filing a repetition and say that the petition was patently borrowed by time and therefore a delivery of possession could not have been ordered. He can ask for the proceedings being quashed by the high court. Shri Kantheshwar in a decree for recovery of areas of rent. How do we execute the decree against an absconding tenant? See, if the absconding tenant has property within the jurisdiction of the court, you can attach that property. If he has property outside the jurisdiction of the court that can be attached by precept and that is the only way of if he has got any mobiles left within the jurisdiction they can be attached. If he is absconding arrest would not be possible. The only remedy available would be either attachment of mobiles or immobiles and nothing else. In an appending execution petition, what is the provision to complete the legal hairs of the decree holder? I think it is section 146 and section 50. Those are the two provisions in CPC which I will just make a reference to section 50 first. This is what section 50 says where it refers to a judgment data where a judgment data dies before the decree has been fully satisfied. The folder of the decree may apply to the court which passed to it to execute the same against the legal representatives of the deceased. That is with regard to judgment data. Then we can go to section 146 which says because the order 20, order 20, right 146. Then 146, save as otherwise provided by the court or by any law for the time being in force where any proceedings may be taken or application made by or against person by or against any person. Then the proceeding may be taken and the application may be made by or against any person climbing under him. So it may be done by or under any person climbing under him. So the decree holder can file an application under section 146. A reference also can be made to order 21 rule 16. In fact, this is what order 21 rule 16 says application for execution by transferring a decree where pre or if a decree has been passed jointly in favor of two or more persons. The interest of any decree holder in the decree is transferred by assignment in in writing or by operation of law is what it says or by operation of law. Therefore the legal years would get into the picture operation of law, the transfer may apply to the execution of the decree to the court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the applications were made by the decree by the decree holder. Therefore, we may relay upon section 146 and order 21 rule 16 for bringing the LRs of the deceased decree holder on record. Abhishek Sharma under which circumstances in the suit an eviction decree is passed. An eviction decree is passed either by executing by a court exercising house rent control jurisdiction or in a suit for eviction against a tenant by a landlord where by terminating the tenancy you can file a suit for eviction. It can be passed either by a regular civil court in respect of property which is not covered under the rent control act or by a rent control act where the property is covered within control act. So we have no other question. Before we part for today, tomorrow webinar would be the March of Law of Electricity Act 2003 by Mr. Enel Raja senior advocate from Madras High Court. We connected with us to have the insights on the session and thank you Mr. Rao. It was a fascinating session well constructed thoughts and decimated in the right perspective so that any layman or a young lawyer or anyone for that matter would understand as to how to proceed under the execution and what are the defenses available while being you are a judgment data and what are the way forward for a certificate holder. Thank you everyone. Stay blessed. Thank you.