CPC | Grounds To Set Aside Sale Under Order XXI Rule 90 Not Available In A Petition Filed U/S 47 : Kerala High Court

The Kerala High Court on Monday ruled that the grounds available to set aside a sale under Order XXI Rule 90 of the Code of Civil Procedure (CPC) shall not be available in a petition filed under Section 47 even if it is for the same relief. 

Dismissing a revision petition, Justice A. Badharudeen held so after referring to a few judgments on the issue and exploring the law laid down in this area. 

"...the law emerges is that it is the material irregularity or fraud which affects the method and manner of publishing the proclamation and the actual conduct of the sale that clothes the Court with a jurisdiction to set aside the sale under Order XXI Rule 90 C.P.C. Where Order XXI Rule 90 applies, Section 47 is not available."

However, it was observed that where there is inherent illegality in the execution application, this is a matter arising in execution outside the purview of Order XXI Rule 90 and thus within the scope of Section 47 of the Code.

"To put it otherwise, when a judgment debtor makes an application under Order XXI Rule 90 of the C.P.C, he accepts the factum of the sale and seeks to challenge it on the ground that the sale is vitiated by material irregularity or fraud in publishing or conducting the sale. When an application under Section 47 is made, by a judgment debtor challenging the sale, he claims the sale to be void for illegality or in any event voidable on grounds other than those referred in Order XXI Rule 90 of C.P.C and in a case where the judgment debtor invokes Section 47 of the C.P.C, order XXI Rule 90 of the C.P.C could not be applied."

The Judge also added that errors committed while settling the sale proclamation which are mere irregularities cannot be described as errors that render a sale void and hence, the application made in that case could not be treated as one under Section 47 of CPC.

The decision came in a civil revision petition filed by the judgment debtors after their petition under Order XXI Rule 90 to set aside a sale failed before the Execution Court and the Appellate Court.

The petitioners herein had agreed to purchase property from the respondent. However, the petitioners failed to perform the said agreement and to pay the required amount.

Accordingly, the respondent was allowed to auction the said property, and the sale was confirmed. 

Aggrieved by this, the petitioners moved an application to set aside this sale under Order XXI Rule 90, but it was dismissed by the Execution Court. 

The District Judge also confirmed the order of the Execution Court noting that the application under Order XXI Rule 90 was barred by limitation. It was filed almost three months after the confirmation of the sale whereas 60 days was the prescribed limitation period. 

Senior Advocate T. Krishnanunni appearing for the petitioners argued that the application if treated as one filed under Order XXI Rule 90 may be barred by limitation but not so if treated as one filed under Section 47. 

Accordingly, he urged the Court to consider the application as one filed under Section 46 of CPC pointing out that under residuary Article 137 of the Limitation Act, the period to set aside the sale is within three years from the sale date. 

Appearing for the respondent, Advocate R. Bindu however refuted this contention and submitted that the contention now advanced will not sustain. 

The question before the Court was whether the grounds to set aside a sale as enumerated in Order XXI Rule 90 of C.P.C. are also available in a petition filed under Section 47 C.P.C. to set aside a sale.

The period of limitation to set aside a sale under Order XXI Rule 90 C.P.C. is governed by Article 127 of the Limitation Act and is 60 days from the date of sale. However, in an application under Section 47 of C.P.C., Article 137 governs the period of limitation and the same is three years from the date of sale.

The Court referred to a couple of decisions such as Saheed v. Aluminium Fabricating Company [1985 KLT 991] and G. Rajarethna Naikkan v. P.N. Parameswara Kurup [1997(1) KLT 777] where the difference between Section 47 and Order XXI Rule 90 was elaborated on. 

After perusing the law laid down in several precedents, the Court decided that there was no merit in the contention raised by the petitioners. 

Moreover, the Court noted that even if the petition was treated as one filed under Section 47, for argument sake, it was still unsustainable since notice under Order XXI Rule 66 had already been issued in this case. 

Accordingly, the revision petition was dismissed finding that the petitioners were obstructing the delivery of the property of which sale was confirmed years back by filing petitions one after the other before different courts. 

Case Title: K. Jayarajan & Ors v. Sambasivan

Citation:  2022 LiveLaw (Ker) 56

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