LexKADIYALA RAMA RAO versus GUTALA KAHNA RAO (DEAD) BY LRS. AND ORS.
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KADIYALA RAMA RAO A v. GUTALA KAHNA RAO (DEAD) BY LRS. AND ORS. FEBRUARY 18, 2000 [S.R MAJMUDAR AND V.C. BANERJEE, JJ.J B Civil Procedure Code, 1908 : Order 21: Issue of "saleable interest't..._Auction purchaser of a house sold in C execution of a decree-Application under Rule 90 filed by judgment-debtor for setting aside sale of the property on the ground that they had 110 saleable interest-Application dismissed by District Munsif on the ground that there was no saleable interest as a running lease of the property had a stipulation that it would not be alienated for 15 years-Held, High Court e"ed in allowing D revision petition and setting aside the auction sale-lssue of "saleable interest" can only be raised under Rule 91-ln any event the issue of "salable interest" can only be agitated by the purchaser and not by the judgment-debtor. Application under order 21 Rule 90 for setting aside sale of property in execution of decree--f'emtitted grounds available for challenge of such ap- plication-Held, ground of challenge are stipulated in the provision itself, and these grounds are material in-egularity and fraud. Order 21 Rule 90(3) and Section II-Held, Rule 90(3) incorporates principles analogous to doctline of constructive res judicata as envisaged under Section 11. Order 21 Rule 90 (as amended by Andhra Pradesh & Madras)-Fur- nishing of security by applicant-District Munsif had offered the judgment- debtor to deposit money in order to avoid sale-Held, there was due E F compliance of the provisions of law. G Section 115--Revision applicatio,_Scope of-Legislative change intro- duced-Held, is clear enough to indicate that an order passed by court subordinate to the High Court in its appellate jurisdiction, if it is not appeal- able, would be within the ambit of Section 115-Thus a revisional application would be maintainable-Further, a revision application against an order H 1045 1046 SUPREME COURT REPOR rs [2000] 1 S.C.R. A which is not appealable either before the subordinate court or the High Court would also be maintainable. Interpretation of Statutes-Dete1mination of legislative intent-Section II and Order 21 Rule 90( 3) CPC-Held, in both provisions the legislative intent is clear and categoncal that in case of intentional relinqufrhment of a B kllown right, there would be no question of proceeding further. Appellant purchased a house in an auction purchase pursuant to a court sale in execution of a decree. Respondent filed an application under Order 21 Rule 90 before the District Munsif to set aside the auction sale C but the same was rejected and the sale was confirmed. Subsequently on an application filed under Section 115 CPC before the High Court, respon· dents obtained an interim stay of the proceedings upon deposit of half of the decreetal amount. Later on High Court directed the respondents to deposit the remaining half of the decreetal amount. Respondents duly D complied with the deposit of the sale proceeds. Revision petition was allowed by the High Court and Review petition against it was dismissed. Hence this appeal. E It was contended by the appellant the revision petition was not maintainable and that the High Court should have rejected the same. Allowing the appeal, this Court HELD : 1.1. On a plain reading of Order 21 Rule 90 CPC factors emerge and which ought to be taken note of in the matter of setting aside F the sale of an immovable property, viz. material irregularity and fraud in publishing or conducting the sale, that the court dealing viith such an application is satisfied that the applicant has sustained substantial injury by reason of such an irregularity or fraud; and that no application would be entertained upon a ground which the applicant could have taken or before the date of drawing up of the proclamation of sale. The third G requirement deserves special mention by reason of the factum of incor- poration of the principles analogous to the doctrine of constructive res judicata as envisaged under Section 11 CPC. The legislative intent is clear and categorical in both the provisions; that in the event of an intentional relinquishment of a known right, question of proceeding further would not H arise. (1049-H; 1050-A-D] K. RA'vlA RAO v. G.K RAO 1047 Dhirendra Nath Gorai & Ors. v. Sudhir Chandra Ghosh & Ors., AIR A (1964) SC 1300, relied on. 12. The provisions of Order 21 Rule 90 thus categorically envisage that m
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