Case Note & Summary
The appellants, Sri L. Nanjunda Murthy and Sri L. Nagaraj, were judgment-debtors in Execution No.3242/2014 pending before the XXXI Additional City Civil and Sessions Judge, Bengaluru. The respondent No.1, Sri S. Suresh Reddy, was the decree-holder who had obtained a decree and sought execution by sale of the appellants' property. The executing court issued a sale proclamation and the sale was conducted on 11.09.2015 at the spot and confirmed on 28.09.2015. The appellants filed I.A.No.4 under Order XXI Rule 90 read with Section 151 CPC seeking to set aside the sale on the ground of material irregularity, contending that no notice of the sale was served on them and the sale was conducted at the spot without prior intimation. The executing court dismissed the application. Aggrieved, the appellants filed this miscellaneous first appeal under Order 43 Rule 1(j) CPC. The High Court examined the record and found that the sale proclamation was issued but there was no proof of service of notice on the judgment-debtors. The court noted that the sale was conducted at the spot without giving any opportunity to the judgment-debtors to participate or raise objections. The court held that the failure to serve notice under Order XXI Rule 66 CPC and the conduct of sale at spot without prior intimation constituted a material irregularity within the meaning of Order XXI Rule 90 CPC. The court allowed the appeal, set aside the order dated 21.01.2016, and set aside the sale held on 11.09.2015 and the confirmation dated 28.09.2015. The executing court was directed to proceed with the execution afresh after giving proper notice to the judgment-debtors.
Headnote
A) Civil Procedure - Execution of Decree - Setting Aside Sale - Order XXI Rule 90 read with Section 151 CPC - Material Irregularity - The appellants (judgment-debtors) challenged the sale of their property contending that no notice of the sale was served on them and the sale was conducted at the spot without prior intimation - The Court held that failure to serve notice under Order XXI Rule 66 CPC and conducting sale at spot without giving opportunity to judgment-debtors constitutes material irregularity - Sale set aside (Paras 1-10).
Issue of Consideration
Whether the sale held on 11.09.2015 and confirmed on 28.09.2015 is liable to be set aside on the ground of material irregularity in publishing and conducting the sale under Order XXI Rule 90 CPC.
Final Decision
The appeal is allowed. The order dated 21.01.2016 passed in Execution No.3242/2014 on I.A.No.4 is set aside. The sale held on 11.09.2015 and the confirmation dated 28.09.2015 are set aside. The executing court is directed to proceed with the execution afresh after giving proper notice to the judgment-debtors.
Law Points
- Order XXI Rule 90 CPC
- Section 151 CPC
- material irregularity in sale
- setting aside sale
- notice to judgment-debtors
- conduct of auction at spot
