LexKANCHERLA LAKSHMINARAYANA versus MATTAPARTHI SYAMALA AND ORS.
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[2008] 5 S.C.R. 224 A KANCHERLA LAKSHMINARAYANA ,._ - v. MATTAPARTHI SYAMALA AND ORS. (Civil Appeal No. 2001 of 2008) B MAR.CH 14, 2008 [S.B. SINHA ANID V.S. SIRPURKAR, JJ.] Code of Civil Proce!dure, 1908 - Order 21, Rule 58, proviso clause (a) - Execution - Auction : c Time factor - Sale was not confirmed - Objection to auction and for setting aside of auction sale - Maintainability of - Held: Maintainable - Mere holding of auction would not bar the objections thereto - The word 'sold' in Clause (a) of proviso to Rule 58 to be understood as complete sale D including confirmation of auction. Locus factor - Obje'Cfion by alleged purchaser on the 1- basis of agreement of sal19 - Held: Purchaser cannot be utter outsider having no locus standi to take the objections as he E filed suit on the basis of cin agreement of sale which was not denied by the seller. Second respondent executed an agreement of sale of suit property and received part consideration amount. However, he failed to E!xecute the sale deed inspite of F several requests. Appellant filed a suit for specific performance of sale .agreement. Subsequently first respondent who was wife of second respondent filed a maintenance case agaiinst her husband and obtained therein injunction order restraining second respondent G from alienating the properties. This suit was decreed. The first respondent filed E:xecution Petition for recovery of arrears of maintenancEi but second respondent did not pay the arrears amount and instead filed IA to set aside the decree. This application was dismissed. ~ ·~ H 224 KANCHERLA LAKSHMINARAYANA v. MATTAPARTHI 225 SYAMALAAND ORS. The first respondent again filed execution petition for A execution of the decree. A public auction was ordered and the same was conducted in which the third respondent purchased the suit property. The appellant filed a petition before the Executing B Court under the provisions of Order 21 r.58 CPC raising objections to the said auction and to declare that the sale is subject to appellant's claim in suit for specific performance filed by him which was pending. This application was dismissed by the subordinate Court which was upheld by High Court on the ground that once c the sale takes place during the execution, then objection raised would be of no consequence and the application would be untenable. Hence the present appeal. Allowing the appeal, the Court D _., HELD: 1. The High Court and the Trial Court were in utter error in relying on proviso to Clause (a) to Rule 58 of Order 21 CPC. Mere holding of the auction does not bar the objections thereto. Since the sale was not confirmed, that made substantial difference. The word "sold" in E Clause (a) of the proviso to Rule 58 Order 21 CPC has to be read meaning thereby a complete sale including the confirmation of the auction. That not having taken place, it cannot be said that the objection by the appellant was ill-founded or untenable as has been held by the High F Court and the Trial Court. [Paras 10, 16] [240-F; 234-B-C] Mis. Magunta Mining Co. v. M. Kondaramireddy & Anr. AIR (1983) A.P. 335 - affirmed. Vannarakkal Kallalathil Sreedharan v. Chandramaath G Balakrishnan & Anr. (1990) 3 SCC 291; Rango Ramachandra Kulkarni v. Gurlingappa Chinnappa Muthal AIR 1941 Born. ... _... 198; Yeshvant Shanker Dunakhe v. Pyaraji Nurji Tamboli AIR 1943 Born 145; Kochuponchi Varughese v. Ouseph Lonan AIR 1952 TC 467; Kewal Singh v. Umesh Mishra AIR 1983 H 226 SUPREME COURT REPORTS [2008] 5 S.C.R. A Patna 303 - referred to. 2. It cannot be said that the present appellant has no locus standi to raise an objection to the sale for the simple reason that he had filed a suit on the basis of an Agreement of Sale. The factum of the Agreement of Sale was not 8 denied by the second rnspondent. Therefore, whether the Agreement of Sale was a good Agreement of Sale entitling the appellant for specific performance on the basis of that agreement is essentially a question to be decided subsequently in the suit (though the suit is earlier to the C suit filed by the first respondent). Under such circumstances there was a cloud on the property and a person like appellant who had the obligation qua the property in the shape of an Agreement of Sale could not be held to be an utter outsider having no locus standi to D take the objections. [Para 14] [238-F-H; 239-A] Most. Puphup Dei Kuar v. Ram
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