CHILAMKURTI BALA SUBRAHMANYAMversusSAMANTHAPUDI VIJAYA LAKSHMI & ANR.

                                 (2017] 3 S.C.R. 826



    A              CHILAMKURTI BALA SUBRAHMANYAM
                                           v.
                  SAMANTHAPUDI VIJAYA LAKSHMI & ANR.
                           (Civil Appeal No. 5988 of 2007)
                                                    I

    B                               MAY02,2017
           [R. K. AGRAWALAND ABHAY MANOHAR SAPRE, JJ.]
                Code of Civil Procedure, 1908 - Or.XX!, r.90 - Scope of -
        Execution application flied by decree-holder - Attachment of suit
    C    schedule property - Proclamation of sale on 5.10.1999 - On
         4.11.1999, sale warrant issued to bailif! to give 15 days notice by
         affixing the same  in   court house making due proclamation of suit
        schedule property - Publication in newspaper regarding sale on
         17.11.1999 - Participation of 7 bidders -Appellant highest bidder -
        Dissatisfied, judgment debtor filed application u/Or.XXI, r. 90
    D   seeking setting aside of sale which was dismissed - High Court
         allowed the appeal ofjudgmen~ debtor and set aside the order of
         executing court holding that no clear 15 days notice of sale was
        "given and, therefore, sale held was irregular and ifjudgment debtor
         deposits a sum of Rs. 715000 being the price fetched at public
    E    auctioi1, the sale held would not be given effect to - On appeal,
         held: No case was made out by the judgment debtor for setting
         aside of the sale of the property in question on the ground of material
         irregularity or fraud in publishing or in conducting the sale so as
         to enable the Court to invoke its powers u/Or.XXI. r.90(2) - Proper
        publicity was given for auction sale in papers as also by beat of
    F    drums pursuant to .which 7 bidders participated in auction sale -
         Moreover, a clear 15 days notice was given for auction sale from
         the date, of issuance of order for proclamation of sale - The order
         of executing court is restored.
              Allowing the appeal, the Court
                            (

    G
              HELD: 1. Respondent No. 1, in her application for setting
        aside the sale, had mainly raised four objections. Firstly, clear 15
        days' notice was not given for sale of the properties as required
        under the Rules. Secondly, the valuation of the property was not
        properly mentioned in the concerned documents so as to enable
    H
                                          826


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CHILAMKURTI BALA SUBRAHMANYAM v. SAMANTHAPUDI VIJAYA                     827
                      LAKSHMI


the parties to know its proper valuation prevailing on the date of A
sale.. Thirdly, the market value of the property on the date of
auction was more than the price actually fetched in the auction,
and fourthly, no proper publication including beating of drum was
made before the date of auction due to which there was less
participation of the bidders in the auction sale. The executing B
Court dealt with all the four objections with reference to the record
of the proceedings and found as a fact that none of the objections
had any merit. The executing Court was justified in overruling
the objections. [Paras 16-18)[833-E-G, H; 834-A]
        2. The proper publicity was given for auction sale in papers C
 so also by beat of drums pursuant to which as many as seven
 bidders including the appellant participated in the auction sale.
 Had there been no publicity, it would not have been possible for
 seven persons to participate in the auction proceedings. Secondly,
 the details of the valuation of the property were duly mentioned,
  namely, decree holder's valuation at Rs.2, 75,000/- likewise, D
 Amin's valuation at Rs.4 lacs whereas the property was sold in
 auction for Rs.7,50,000/-. In this view of the matter, it could not
  be said that the bidders did not know the valuation or/and that it
  was not mentioned in the auction papers. Thirdly, judgment debtor
 did not adduce any evidence nor brought any bidder to purchase
  the property for a higher price than the purchase bid E
  (Rs.7,50,000/-) except to say in the application that value of the
  property was between Rs.12 lakhs to Rs.14 lakhs. This objection
  has no substance for want of any evidence. Fourthly, there was
  adequate publicity given with the aid of beat of drums in the locality.
 It was proved with the record of the executing Court. Lastly, a F
  clear 15 days' notice was given for auction sale fixed for 17.11.1999
  when counted from 05.10.1999. In other words, 15 days have to
  be counted from 05.10.1999 because it is on this date the order
. was issued as contemplated under Order XXI Rule 64 for
  proclamation of sale fixing the date of sale as 17.11.1999. The
  executing Court, therefore, substantially and in letter and spirit G
  followed the procedure prescribed under Order XXI Rules 64
  and 66 of the Code while conducting the sale of the property in
  question. [Paras 19-23][834-B-F)
       3. It is not the material irregularity that alone is sufficient
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828           SUPREME COURT REPORTS                        [2017] 3 S.C.R.



A for setting aside of the sale. The judgment. debtor has to go further
   and establish to the satisfaction of the Court that the material
   irregularity or fraud, as the case may be, has resulted in causing
   substantial injury to the judgment-debtor in conducting the sale.
   It is only then the sale so conducted could be set aside under
B Order XXI Rule 90(2) of the Code. Such is not the case here.
   None of the objections raised by respondent No.1 had any merit
   and nor any of the objections constituted any kind of material
  -irregularities so as to enable the Court to set aside the sale under
   Order XXI Rule 90(2) of the Code. So far as the plea of fraud was
   concerned, admittedly, it was not raised and, therefore, it did not
C fall for consideration. (Paras 24, 25)(834-G-H; 835-A-B]
           Saheb Khan v. Mohd. Yousufuddin & Ors. (2006) 4
           sec 476 - referred to.
           Gajadhar Prasad & Ors. v. Babu Bhakta Ratan & Ors.
           (1973) 2 sec 629 : [1974] 1 SCR 372; Ambati
 D         Narasayya v. M Subba Rao & Anr. 1989 Supl(2) SCC
           693 : [1989] 1 Suppl. SCR 451; Desh Bandhu Gupta v.
           N.L. Anand & Rajinder Singh (1994) 1 SCC 131:
            [1993] 2 Suppl. SCR 346 - distinguished.
                            Case Law Reference
 E
             (2006) 4 sec 476                referred to        Para 14
             [1974] 1 SCR 372                distinguished      Para 26
             [1989] 1 Suppl. SCR 451         distinguished      Para 26
             (1993] 2 Suppl. SCR 346         distinguished      Para 26
 F
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5988
      of2007.
            From the Judgment and Order dated 23.12.2005 of.the High Court
      of Judicature, Andhra Pradesh at Hyderabad in Civil Miscellaneous
 G    Appeal No. 1721 of2000.
           Basava Prabhu Patil, Sr. Adv., Ms. Ananya Bhattacharyya,
      Mukund Unny, Devahuti T, Anupam Lal Das, Advs. for the Appellant.
            Gagan Gupta, Ananta Prasad Mishra, Sanjay Kapur, Advs. for
      the Respondents.
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CHILAMKURTI BALA SUBRAHMANYAM v. SAMANTHAPUDI VIJAYA                    829
                             LAKSHMI


      The Judgment of the Court was delivered by                        A
       ABHAY MANOHAR SAPRE, J, I. This appeal is filed by the
auction purchaser against the final judgment and order dated 23.12.2005
passed by the High Court of Judicature, Andhra Pradesh at Hyderabad
in Civil Misc. Appeal No. 1721 of2000 whereby the High Court allowed
the appeal filed by judgment debtor-respondent No.1 herein and set aside B
the order dated 20.04.2000 passed by the Senior Civil Judge, Kovvur in
E.A. No. I 020 of I 999 in E.P. No. 46 of I 998 in 0.S. No. I 92 of I 987
dismissing the application filed by the judgment debtor under Order 21
Rule 90 read with I 5I of the Code of Civil Procedure, I908 (hereinafter
referred to as "the Code").
                                                                          c
      2. Facts of the case need mention, in brief, to appreciate the
controversy involved in this appeal.
       3. Respondent No.2-State Bank of India is the plaintiff/decree
holder whereas respondent No.I is the defendant/judgment debtor in
O.S. No. I 92 of I 987. Respondent No.2 obtained a money decree for D
Rs.5,I5,390/- against respondent No. I on I6.03. I 998 in O.S. No.192 of
1987 for the loan given to her by respondent No.2 and which remained
unpaid by respondent No. l. Since respondent No. l failed to satisfy the
decree, respondent No.2 filed execution application and brought the
schedule property owned by respondent No. I-judgment debtor to auction E
sale through the process server of the Court of Senior Civil Judge, Kovvur,
in execution proceedings in E.P. No. 46of1998 in O.S. No. I 92of1987
for realization of decretal dues.
       4. The suit schedule property was, accordingly, attached by the
executing Court under a warrant. Notice was, accordingly, issued to F
respondent No. !-judgment debtor in respect of the said executing
proceedings on 14.07.I999 to which she filed counter affidavit raising·
certain objections. On 31.09.1999, the executing Court overruled the
objections raised by respondent No. I in her counter affidavit and fixed
22.09.I 999 as the date of settlement of terms. On 22.09.I 999, the terms
of proclamation of sale were settled fixing the date for sale of the said G
property on 17.11.1999.
       5. Pursuant to the above referred proceedings, proclamation of ·
the sale was issued on 05 .10.1999 by the executing Court under Order

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830            SUPREME COURT REPORTS                            [2017] 3 S.C.R.


A 21 Rule -64 of the Code mentioning therein the conditions of sale.
  Proclamation of the sale was entrusted to the Process Server ofpublication
  on 27 .10.1999. The Process Server gave endorsement on 02.11.1999
  that the sale proclamation was affixed to the house/suit schedule property
  and also by beat of tom tom near the property and also affixed the same
B on the notice board of the Court. On 04.11.1999, sale warrant was issued
  to the Bailiff to give 15 days' notice by affixing the same in court house,
  making due proclamation of the suit schedule property. The proclamation
  of the sale was published in the newspaper on 05.11.1999 stating that
  the sale would be held on 17 .11.1999.
         6. On 17.11.1999, the property was brought to auction sale where
C 7 bidders participated. The appellant herein was the highest bidder of
  Rs.7,15,000/-. Out of the said bid amount, Rs.1,78,750/-was paid to the
  Bailiff. The Bailiff filed a return on 18.11.1999 about foe sale stating
  that he published about sale by tom tom and the appellant was the highest
  bidder and the initial amount was deposited with respondent No.2-Bank
D after deducting poundage.
             7. Dissatisfied with the auction, the judgment debtor filed an
      application under Order 21 Rule 90 seeking setting aside of the sale,
      inter alia, on the ground that the proclamation was done within 15 days
      and hence it is illegal, tom tom wala neither made proclamation and nor
 E    took neighbours' signatures, proclamation was not published in Nagar
      Panchayat office, publication was defective in nature because it did not
      mention the valuation of the property etc. It was also objected that the
      Bank brought only three bidders whereas if more bidders had participated,
      the property put to sale would have fetched easily between 12 to 14
      lakhs.
 F
            8. By order dated 20.04.2000, the Senior CiviHudge, Kovvur found
      no merit in any of the objections raised by respondent No. I and accordingly
      dismissed the application.
          9. Challenging the said order, the judgment debtor-respondent No. I
 G filed an appeal before the High Court.
           10. The High Court, by impugned judgment dated 23.12.2005,
   allowed the appeal and set aside the order of the executing Court, inter
   al ia, holding that if the judgment debtor deposits a sum of Rs. 7, 15,0001
   - being the price fetched at the public auction within a period of three
 H weeks from the date ofreceipt ofa copy of the judgment, the sale held
CHILAMKURTI BALA SUBRAHMANYAM v. SAMANTHAPUD! V!JAYA                         831
          LAKSHMI[ABHAYMANOHARSAPRE,J.]


would not be given effect to. It was held that if the executing Court feels A
that the amount deposited by the judgment debtor is sufficient to discharge
the decretal amount, it would not be necessary to put the property to
auction and the amount so deposited earlier by the auction purchaser
shall be refunded to him. It was held that if the amount ordered to be
deposited by the judgment debtor is more than the amount due to the B
decree holder, excess amount, after adjusting the amount due to the
decree holder/auction purchaser, be refunded to the judgment debtor. It
was held that no elear 15 days' notice of sale as per Rules was given
and hence sale held is irregular. It was lastly held that in default of
payment ofRs.7,15,000/- within the stipulated period, the appeal shall
 stand dismissed.                                                           C
        11. Aggrieved by the said judgment, the auction purchaser has
filed this appeal by way of special leave before this Court.
       12. Heard Mr. Basava Prabhu Patil, learned senior counsel for
the appellant-auction purchaser and Mr. Gagan Gupta, learned counsel
for respondent No.I-judgment debtor and Mr. Sanjay Kapur, learned            D
counsel for the Bank-decree holder.
       13. Having heard the learned counsel for the parties and on pernsal
of the record of the case, we are inclined to allow the appeal finding
merit therein.
                                                                              E
       14. The law which governs the controversy involved in this appeal
is laid down by this Court in the case of Saheb Khan vs. Mohd.
Yousufuddin & Ors., 2006(4) SCC406 (Three Judge Bench). While
examining the scope of Order 21 Rule 90 of the Code, Justice Ruma Pal
speaking for the Bench held as under :
                                                                              F
       "12. We are unable to sustain the reasoning of the High
       Court. Order 21 Rule 90 of the Code of Civil Procedure
       allows, inter alia, any person whose interests arc affected
       by the sale to apply to the court to set aside a sale of
       immovable property sold in execution of a decree on the
       ground of "a material irregularity or fraud in publishing or G
       conducting" the sale. Sub-rule (2) of Order 21 Rule 90
       however places a further condition on the setting aside of a
       court sale in the following language:


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832      SUPREME COURT REPORTS                       [2017] 3 S.C.R.


                         .         '

A     "90. (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 court is satisfied that the
      applicant has sustained substantial injury by reason of such
      irregularity or fraud."
B     13. Therefore before the sale can be set aside merely
      establishing a material irregularity or fraud will not do. The
      applicant must go further and establish to the satisfaction
      of the court that the material irregularity or fraud has
      resulted in substantial injury to the applicant. Conversely
      even if the applicant has suffered substantial injury by reason
c     of the sale, this would not be sufficient to set the sale aside
      unless substantial injury has been occasioned by a material
      irregularity or fraud in publishing or conducting the sale.
      (See Dhirendra Nath Gorai v. Sudhir Chandra Ghosh;(1964)
      6 SCR 1001, Jaswantlal Natvarlal Thakkar v. Sushilaben
D     Manila/ Dangarwala, 1991 Supp(2) SCC 691 and Kad~vala
      Rama Rao v. Gutala Kalina Rao,(2000) 3 SCC 87)
      14. A charge of fraud or material irregularity under Order
      21 Rule 90 must be specifically made with sufficient
      particulars. Bald allegations would not do. The facts must
E     be established which could reasonably sustain such a
      charge. In the case before us, no such particulars have been
      given by the respondent of the alleged collusion between
      the other respondents and the auction-purchaser. There is
      also no material irregularity in publishing or conducting the
      sale. There was sufficient compliance with Order 21 Rule
F     67(1) read with Order 21 Rule 54(2). No doubt, the trial
      court has said that the sale should be given wide publicity
      but that does not necessarily mean by publication in the
      newspapers. The provisions of Order 21 Rule 67 clearly
      provide if the sale is to be advertised in the local newspaper,
G     there must be specific direction of the court to that effect.
      In the absence of such direction, the proclamation of sale
      has to be made under Order 21 Rule 67(1) "as nearly as
      may be, in thc'tnanner prescribed by Rule 54 sub-rule (2)".
      Rule 54 sub-rule (2) provides for the method of publication
      of notice and reads as follows:
H
CHILAMKURTI BALA SUBRAHMANYAM v. SAMANTHAPUDI VIJAYA                          833
          LAKSHMI [ABHAY MANOHAR SAPRE, J .)


       "54. (2) The order shall be proclaimed at-some place on or A
       adj a cent to such property by beat of drum or other customary
       mode, and a copy of the order shall be affixed on a
       conspicuous part of the property and then upon a
       conspicuous part of the courthouse, and nlso, where the
       property is land paying revenue to the Government, in the B
       office of the Collector of the district in which the land is
       situate and, where the property is land situate in a village,
       also in the office of the Gram Panchayat, if any, having
     · jurisdiction over that village."
       15. After examining the facts of this case in the light of the law
laid down in the case ofSaheb Khan (supra), we are of the considered          C
opinion that the reasoning and the conclusion arrived at by the executing
Court deserves to be restored as against that of the High Court in the
impugned order. In other words, no case was made out by the judgment
debtor for setting aside of the sale of the property in question on the
ground of committing any material irregularity or fraud in publishing or in   D
conducting the sale so as to enable the Court to invoke it~ powers under
Order 21 Rule 90 (2) of the Code.
        16. It is noticed that respondent No. 1, in her application for setting
aside the sale, had mainly raised four objections. Firstly, clear 15 days'
notice was not given for sale of the properties as required under the E
Rules. Secondly, the valuation of the property was not properly mentioned
in the concerned documents so as to enable the parties to know its proper
valuation prevailing on the date of sale. Thirdly, the market value of the
property on the date of auction was more than the price actually fetched
in the auction, and fourthly, no proper publication including beating of
drum was made before the date of auction due to which there was less F
participation of the bidders in the auction sale.
       17. The executing Court dealt with all the four objections with
reference to the record of the proceedings and found as a fact that none
of the objections had any merit. The High Court, however, found fault in
the same though not in all but essentially in the matter relating to giving    G
of clear 15 days' notice and the manner in which it was issued and
finding merit in the objection, set aside the sale on imposing certain
conditions enumerated above.
       18. In our considered opinion, as mentioned above, the executing
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834            SUPREME COURT REPORTS                          (2017] 3 S.C.R.


A Court was justified in overruling the objections and we concur with the
  reasoning and the conclusion of the executing Court .
         19. We also find on facts that• firstly, the proper publicity was
  given for auction sale in papers so also by beat of drums pursuant to
  which as many as seven bidders including the appellant herein participated
B in the auction sale. Had there been no publicity, it would not have been
  possible for seven persons to participate in the auction proceedings.
             20. Secondly, the details of the valuation of the property were
      duly mentioned, namely, decree holder's valuation at Rs.2,75,000/-
      Iikewise, Amin 's valuation at Rs.4 lacs whereas the property was sold
c     in auction for Rs.7,50,000/-. In this view of the matter, it could not be
      said that the bidders did not !mow the valuation or/and that it was not
      mentioned in the auction papers.
         21. Thirdly, judgment debtor did not adduce any evidence nor
  brought any bidder to purchase the property for a higher price than the
D purchase bid (Rs.7,50,000/-) except to say in the application that value
  of the property was between Rs.12 lakhs to Rs.14 lakhs. In our view,
  this objection has no substance for want of any evidence.
          22. Fourthly, there was adequate publicity given with the aid of
  beat of drums in the locality. It was proved with the record of the
E executing Court as was rightly held by the executing Court and lastly, in
  our view, a clear 15 days' notice was given for auction sale fixed for
  17.11.1999 when counted from 05.10.1999. In other words, 15 days
  have to be counted from 05. I0.1999 because it is on this date the order
  was issued as contemplated under Order 21Rule64 for proclamation of
  sale fixing the date of sale as 17 .11.1999.
F
          23. The executing Court, therefore, substantially and in letter and
  spirit followed the procedure prescribed under Order 21 Rules 64 and
  66 of the Code while conducting the sale of the property in question.
         24. The law on the question involved herein is clear. It is not the
G material irregularity that alone is sufficient for setting aside of the sale.
  The judgment debtor has to go further and establish to the satisfaction of
  the Court that the material irregularity or fraud, as the case may be, has
  resulted in causing substantial injury to the judgment-debtor in conducting
  the sale. It is only then the sale so conducted could be set aside under
  Order 21 Rule 90(2) of the Code. Such is not the case here.
H
CHILAMKURTI BALA SUBRAHMANYAM v. SAMANTHAPUDI VIJAYA                             835
          LAKSHMI[ABHAYMANOHARSAPRE,J.]


      25. In the light of aforesaid discussion, we are of the considered A
view that none of the objections raised by respondent No. I had any
merit and nor any of the objections constituted any kind of material
irregularities so as to enable the Court to set aside the sale under Order
21 Rule 90(2) of the Code. So far as the plea of fraud was concerned,
admittedly, it was not raised and, therefore, it did not fall for consideration.
                                                                                 B
        26. Learned Counsel for the respondent has placed reliance on
the decisions in Gajadhar Prasad & Ors. Vs. Babu Bhakta Ratan &
Ors., (1973) 2 SCC 629, Ambati Narasayya vs. M. Subba Rao &
Anr., 1989 Supl(2) SCC 693, Desh Bandhu Gupta vs. N.L. Anand &
Rajinder Singh, (1994) 1 SCC 131 and Saheb Khan vs. Mohd.
Yousufuddin & Ors.,(2006) 4 SCC 476. We have gone through these                  C
cases and find that all are distinguishable on facts. When we have held
on facts that there are no material irregularities noticed in the case and
that there was compliance of the provisions of Order 21 Rules 64 to 68
then, in our view, the law laid down in these decisions are of no help to
 the respondent-judgment debtor.                                                 D
       27. In view of foregoing discussion, we are unable to agree with
the reasoning and the conclusion arrived at by the High Court which is
factually and legally unsustainable. Its view is not in conformity with the
law laid down in the case ofSaheb Khan (supra).
       28. As a result, the appeal succeeds and is allowed. Impugned              E
order is set aside and that of the executing Court restored.


Devika Gujral                                                  Appeal allowed.