SIDDAGANGAIAH (D) THR. LRS. versus N.K. GIRIRAJA SHETTY (D) THR. LRS.

Citation: [2018] 6 S.C.R. 457 · Decided: 11-05-2018 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SIDDAGANGAIAH (D) THR. LRS.
v.
N.K. GIRIRAJA SHETTY (D) THR. LRS.
(Civil Appeal No. 5007 of 2018)
MAY 11, 2018
[ARUN MISHRA AND UDAY UMESH LALIT, JJ.]
Code of Civil Procedure, 1908:
Or.XXI r.90, r/w s.47 – Suit for title and declaration filed on
the basis of purchase of suit property from defendant no.1 –
Defendant no. 2 who is wife of defendant no. 1 contended that
defendant no. 1 could not have sold the suit property to plaintiff as
she had obtained charge on the suit property in a maintenance suit
– Her case was that her husband in collusion with the plaintiff
orchestrated a nominal and fictitious sale deed and the said sale
deed was executed during the pendency of maintenance suit and,
thus, was hit by s.52 of TP Act – The said suit was finally held in her
favour and she obtained decree and the property was auctioned
and successfully purchased by her in court auction – Defendant
no. 1 filed an application under Or.XXI, r.90 and plaintiff also filed
an application under s.47 r/w Or.XXI, r.90 to set aside the sale –
Application of defendant no.1 was dismissed as not pressed –
Application by plaintiff for setting aside the sale was also dismissed
in default of appearance and sale was confirmed – Defendant no.2
sold the suit property to appellant-defendant no.3 – Plaintiff
suppressing the factum of having filed application under Or.XXI,
r.90 and its dismissal filed suit for declaration of title and restoration
of possession – Whether the suit was hit by principle of res judicata
in view of dismissal of application under Or.XXI, r.90 r/w s.47 –
Held: Where an application has been filed under Or.XXI, r.90 to set
aside a sale on the ground of material irregularity, and the sale is
confirmed under r.92(1) of Or.XXI, the objector is precluded by
virtue of the provisions under Or.XXI, r.92(3) from bringing a suit
to set aside the sale on the same grounds – The auction purchase
made by defendant no.2 (decree-holder) had attained finality –
Confirmation of sale was not questioned by the plaintiff – Thus, no
[2018] 6 S.C.R. 457
  457
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SUPREME COURT REPORTS
[2018] 6 S.C.R.
relief could have been granted – The earlier orders attained finality
and, therefore, operated as a bar for the entertainment of the fresh
suit – As regards question of lis pendens, on the date of purchase of
suit property by plaintiff, the suit filed by defendant no.2 was
pending – Thus, the provisions contained in s.52 would clearly apply
to the case – Suit for title and declaration liable to be dismissed  –
Transfer of Property Act, 1882 – s.52 – lis pendens – Doctrine of
res judicata.
Allowing the appeal, the Court
HELD: 1.1 Sub-rule (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 sub-rule (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 of
sale was drawn up as provided in Order XXI Rule 90 sub-rule (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. 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. [Para
23] [470-C-F]
Rajender Singh v. Ramdhar Singh & Ors. AIR 2001
SC 2220 – relied on.
1.2  Where an application has been filed under Rule 90
Order XXI CPC to set aside a sale on the ground of material
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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 sa

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