High Court of Bombay at Goa Admitted Second Appeal on Substantial Questions of Law Relating to Execution Sale Confirmation Under Order XXI Rule 92(3) of Code of Civil Procedure, 1908. Questions Framed on Inclusion of Property Not Attached or Auctioned in Sale Confirmation and Maintainability of Suit.

Civil suit for declaration that property bearing Survey No. 3/1 was not subject of sale in execution proceedings and consequently the confirmation of sale including that property was void.

Plaintiffs (appellants) sought declaration that Survey No. 3/1 of Village Undorna was not sold in auction and the inclusion in confirmation order was invalid.

The Civil Judge while confirming sale in Execution Application No. 1/1978 included Survey No. 3/1 which the plaintiffs contended was never attached or auctioned.

Order of Civil Judge Senior Division dated 09/04/1990 confirming sale and including Survey No.3/1; Regular Civil Appeal No.41 of 1990 against that order dismissed on 20/11/1992; Regular Civil Suit No.29 of 1991 dismissed by trial court as not maintainable under Order XXI Rule 92(3) CPC; appeal against dismissal also dismissed by District Court.

Whether property which is neither the subject matter of execution application or attachment order, nor proclamation of sale and which is factually not auctioned at all in the court auction, and which is also not referred to in minutes of auction can be included for the purpose of issuing of certificate at the time of the confirmation of sale? Whether the suit is hit by Order 21 rule 92(3) of C. P. C. for setting aside the sale of a property which was never auctioned in the court auction but which was mentioned for the first time at the time of confirmation of sale? Whether the issue (Whether the defendants prove that the suit is barred by the principles of res judicata or principles anologous to res judicata or under Order XXI Rule 92 (3) of C. P. C.?) is purely question of law or mixed question of fact and law? Whether the Civil Court could dispose off the suit by disposing off the issue as preliminary issue when the same pertained to the mixed question of law and facts?

The principal controversy in the present suit is that the appella nt claims that the said survey No.3 / 1 was neither attached nor was ever referred to in any of the proceedings. The said Survey Number was not mentioned in the minute s of the auction nor in any of the replies filed by Jaga n n a t h and other s and, for the first time, the said Survey Number was incorpor ated by the Civil J udge, Senior Division in his Order dated 09 / 0 4 / 1 9 9 0 , confirming the auction sale. The contention of the plaintiffs is that the said property was not the subject matter of the auction proceedings at any time and, therefore, could not have been included for the first time in the order of confirmation of sale dated 09 / 0 4 / 1 9 9 0. The trial court dismissed the suit on the ground that it was not maintain a ble as it was barred by Rule 92(3) of Order XXI of the C.P.C. The second appeal was admitted on the subs t a n ti al questions of law formulated in para 2 of the Appeal Memo which are reprod uced herein below:- “ 1. Whether the property which is neither the subject matter of execution application or attac h me n t order, nor proclam a tion of sale and which is factually not auctioned at all in the court auction, and which is also not referred to in minutes of auction can be included for the purpose of issuing of certificate at the time of the confirmation of sale? ... 4. Whether the Civil Court could dispose off the suit by disposing off the issue as preliminary issue when the same pertained to the mixed question of law and facts?”

1971: Hundi dated 23/06/1971; 1972: Regular Civil Suit No.20/1972 filed by Jaganath Cau Bhomkar against Poto Mono Gaonkar for recovery of Rs.3,500/-; 09/10/1975: Decree in RCS 20/1972; 13/01/1978: Execution Application No.1/1978 filed; 22/02/1978: Attachment of seven properties ordered; 09/10/1978: Terms of settlement of proclamation of sale filed; 31/03/1979: Auction held, five properties sold to respondents 2-5; Objections by Savitri and Sundarem dismissed; 09/04/1990: Civil Judge Senior Division confirmed sale and included Survey No.3/1; 1990: Regular Civil Appeal No.41/1990 filed, dismissed on 20/11/1992; 1991: Regular Civil Suit No.29/1991 filed by appellants, dismissed on preliminary issue under Order XXI Rule 92(3) CPC; Appeal against dismissal filed and dismissed by District Court; 1997: Second Appeal No.46/1997 filed; 04/02/2000: Second appeal admitted, interim relief granted; 05/08/2005: Heard by High Court.

• Code of Civil Procedure, 1908: Order XXI Rule 92(3)