REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5007  OF 2018 [Arising out of S.L.P. [C] No.7468 of 2015]

SIDDAGANGAIAH (D) THR. LRS. …APPELLANTS

VERSUS

N.K. GIRIRAJA SHETTY (D) THR. LRS. …RESPONDENTS

J U D G M E N T

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

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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.

4. As the decree was not satisfied, Thopamma, the decree­holder

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

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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

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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, 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

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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

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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.

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.  

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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

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owners were not examined. Auction sale by Court was not questioned

in the plaint. The 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.  

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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 so­called 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.  

20. Shri S.S. Nagananda, learned senior counsel appearing on behalf

of respondents, contended that the charge was created only on the

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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

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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, non­compliance with the  mandatory procedure can be

considered by  the court  suo­moto 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

fact  is made out.  Husband of the decree­holder 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 non­prosecution. 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

decree­holder Thopamma had filed a declaration in Form 7 claiming to

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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 non­compliance 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:

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“[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  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. Sub­rule (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

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of sale was drawn up as provided in Order XXI Rule 90 sub­rule (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.  

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25. When the auction purchaser  is the decree­holder  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  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

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confirming the sale and thereupon the sale shall become absolute, and

no suit shall lie as per the mandate of sub­rule (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 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

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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

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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 decree­holder and judgment debtor in the court

auction so held.

28. The  auction purchase  made by decree­holder  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 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

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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. And he also conceded and quite rightly, that when a suit is filed for  maintenance  and  there  is  a  prayer  that  it  be  charged  on specified  properties,  it  is  a  suit  in  which  right  to  immovable property is directly in question, and the lis commences on the date of the plaint and not on the date of the decree, which creates the charge.

But he contends that the decision of the courts below that the sale  deed dated  30-1-1920 is  hit  by section  52 is  bad on the following three grounds : (1) The question of lis pendens was not raised in the pleadings, and is not open to the plaintiff. (2) The suit for maintenance, O. S. No. 100 of 1919-20 and the sale in execution  of  the  decree  passed  therein  are  all  collusive,  and section 52 has accordingly no application. (3) The purchase by Devamma in execution of the decree in O. S. No. 100 of 1919-20 on 2-8-1928 is void and inoperative, as the Official Receiver in whom the estate of Keshavananda had vested on 19-2-1926 was not a party to the sale proceedings. These contentions must now be considered.”

(emphasis is ours)

30. About  lis pendens, this  Court has  held that concession  was

rightly made, thereafter laid down the legal proposition. The sale was

clearly subject to the provisions contained in section 52 of the TP Act.

31. On behalf of the respondents, reliance has been placed on the

provisions of section 39 of the TP Act which deals with transfer where

a third person is entitled to maintenance. It provides if such property

is transferred the right may be enforced against the transferee who

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has notice thereof or if  the transfer is gratuitous but not against a

transferee for consideration and without notice of the right. Section 39

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 continued. 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.   

32. Reliance has also been placed on  the provisions contained  in

section 100 of TP Act which cannot be said to be applicable. Section

100 provides that property of one person by operation of law is made

the security of money for payment to another. Latter person is said to

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have a charge on the property. However, no charge shall  be  in the

hands to whom such property has been transferred for consideration

and without notice. As already held, N.K.Giriraja Shetty could not be

said to be a bona fide purchaser. Besides that, it was clearly subject to

the provisions contained in section 52 of the TP Act. Apart from that

the objection under Order XXI Rule 90 stood dismissed. Thus, he was

aware of the auction sale and its confirmation which he ought to have

questioned.

33. Reliance has also been placed on section 27 of the Act so as to

contend that maintenance under the Act shall not be a charge on the

estate of  the deceased or any portion thereof  unless that has been

created by the will of the deceased or by the decree of the court by an

agreement between the defendant and the owner of the estate or any

portion otherwise. It is not the case of creation of charge on the estate

of the deceased. Thus, the provision is not applicable.   Section 27 is

extracted hereunder:

“27. Maintenance when to be a charge.—A dependant's claim for maintenance under this Act shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of  court, by agreement  between the  dependant  and the owner of the estate or portion, or otherwise.”

34. Section 28 of the Act has been relied on, it provides that where a

dependant has a right to receive maintenance out of an estate and

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such estate or any part is transferred, right to receive maintenance

may be enforced against a transferee. However, such transferee should

not be a bona fide transferee for consideration and without notice and

it cannot be enforced against the transferee for consideration without

notice. The provision is of no help in view of findings recorded.

35. Reliance has been placed on  Sadhu Singh v.  Gurdwara Sahib

Narike & Ors. (2006) 8 SCC 75 in which this Court has laid down that

provision of section 39 of the TP Act is akin to the provisions

contained in section 28 of the Act. However, no sustenance can be

drawn from the aforesaid decision in the facts of the present case.

36. It was also contended that the court sale was mechanically made

and confirmed without speaking order and without compliance with

the mandatory provisions of Order XXI Rule 66. No such ground has

been taken in the plaint as such and in the absence of evidence, it

cannot  be  examined.  Sale  and  its  confirmation  itself  has  not  been

questioned on any ground whatsoever. There is total suppression with

respect to  sale  and delivery  of  possession  to  defendant  No.2.  The

original plaintiff did not come to the Court with clean hands and was

guilty of suppressio veri.  

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37. It was also contended that this Court can suomoto take notice of

the illegalities as held by this Court in  Nani Gopal Paul v. T. Prasad

Singh & Ors.  (1995) 3 SCC 579.  It  was contended that  when non­

compliance with the mandatory procedure was there, this Court would

not remain a mute and helpless spectator and has to undo manifest

illegality committed while conducting the court sale fraudulently.

There is no dispute with the proposition. However, in the instant case,

there is no challenge to the auction proceedings on any ground good,

bad or otherwise. In the absence of evidence and suppression of facts,

it cannot be examined.

38. Once the auction has not been questioned and there  is a bar

created by Order XXI Rule 92(3), all these questions cannot be

agitated or urged. Plaintiff has not come to the court with clean hands

as such he could not be said to be entitled to any relief on the grounds

so urged.

39. Reliance has also been placed on the decision of this Court in

Lal  Chand v.  VIIIth  Addl.  District Judge  &  Ors.  (1997)  4  SCC 356

contending that auction sale on 5.10.1977 was irregular and void ab

initio,  smacking of  collusion and  fraud between husband and wife.

Though the interim order of the Court filed in the appeal has also been

relied upon due to its non­compliance of deposit of Rs.5,000/­, the

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property could have been sold in the auction. The sale could not be

said to be fraudulent, collusive or ab initio void. Being a purchaser lis

pendens, it  was not necessary to  issue any notice and N.K.Giriraja

Shetty  was  aware  of the  suit  and  the  charge  and of  sale,  he filed

objections under Order XXI Rule 90 CPC and failed to prosecute the

same.   In  Lal  Chand  (supra) this  Court  has laid down that the

provisions of Order XXI Rule 72 are mandatory and no decree­holder

has any right to bid in the auction without permission of the court.

However, in the instant case permission had been granted and set off

against the decretal amount of maintenance was made in the auction.

The amount of Rs.11,600 was due which was a huge amount at the

relevant time. It was not the case set up that the sale was not notified

in accordance with law as per the provisions contained in Order XXI

Rules 66 and 67 CPC.

40. Reliance has also been placed on section 18 of the Evidence Act.

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

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the judgment and decree passed in the maintenance case, which was

dismissed on merits. Section 18 of the Evidence Act states :  

“18.  Admission  by  party  to  proceeding  or  his  agent.—Statements made by a party to the proceeding, or by an agent to any such party, whom  the  Court  regards,  under  the  circumstances  of  the  case,  as expressly  or  impliedly  authorized  by  him  to  make  them,  are admissions.

  by suitor in representative character.—Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless  they  were  made  while  the  party  making  them  held  that character.  

   Statements made by—

(1) party  interested  in  subject-matter..—persons  who  have  any proprietary  or  pecuniary  interest  in  the  subject-matter  of  the proceeding, and who make the statement in their character of persons so interested, or (2) person  from  whom  interest  derived..—persons  from  whom  the parties to the suit have derived their interest in the subject-matter of the suit,  are admissions, if they are made during the continuance of the interest of the persons making the statements.”

Thus, after parting with the interest, no admission with respect

to the interest which has been parted away is admissible, the

provision is not attracted in the fact­situation of the instant case. The

so­called 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.

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41. Reliance has also been placed on the decision of this Court in

V.Swarajyalaxmi & Ors. v. Authorised Officer, Land Reforms, AIR 2003

SC 2347 to raise the ground that on the date of the court sale

defendant No.1 was not having any saleable interest in the property.

Thus the sale itself was void and vitiated. The decision is not attracted

as there was a charge on the property and purchase was made during

lis pendens and was subject to the provisions contained in section 52.

The transaction could not be said to be of bona fide purchase and

pendency of  the suit without notice. Apart from that objection filed

regarding auction has been dismissed and auction has not been

questioned in the suit. Thus, the plea set up has no legs to stand in

the factual matrix of the case.

42. It was also contended on behalf of the respondent that claim was

made by defendant No.1 under the Land Reforms Act to be a tenant of

N.K.Giriraja Shetty.  The  false claim that has been set up does not

carry the cause of the plaintiff as the auction was already held in 1977

and stood confirmed in 1979.   Further, by the filing of the

counterclaim by defendant  No.1  and  its  abatement is  not  going  to

serve any purpose of the plaintiff as plaintiff has to succeed on the

strength of  his  own  title in the  case to recover  possession.  Merely

because  defendant  No.1 filed a counterclaim that conveyance  was

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nominal and fictitious and it was a transaction of loan, the dismissal

of the same does not carry the case of the plaintiff any further. As the

property was subject to court auction that was not questioned by him.

Thus, he has lost the right, title and interest in the property, if any.

43. Resultantly, we find the judgment and decree passed by the trial

court to  be appropriate. It  has  been  illegally  set  aside  by the first

appellate court. The  High  Court has also erred in dismissing the

second appeal on the impermissible grounds. Thus, the judgment and

decree passed by the  first  appellate court,  as affirmed by the High

Court, deserves to be and are hereby set aside, and the suit of the

plaintiff is ordered to be dismissed. The judgment and decree passed

by the trial court are restored.  The appeal is allowed in these terms.

In the facts and circumstances of the case, parties to bear their

respective costs, as incurred.

….……………………….J. (ARUN MISHRA)

…..………………………J. (UDAY UMESH LALIT)

NEW DELHI; MAY 11, 2018.

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