Kancherla Lakshminarayana vs Mattaparthi Syamala & Ors

3. Second Respondent herein, namely, Mattaparthi Satyam owned 14 acres of land. He put up the said land for sale and the present appellant having offered highest market value of Rs.29,000/- per acre, executed an Agreement of Sale for 14 acres in favour of the appellant on 20th March, 1993 after having received a sum of Rs.1 lakh from the appellant. The appellant thereafter paid Rs.2 lakhs on 27.3.1993 and Rs.20,000/- on 16.4.1993 which payments were endorsed on the reverse side of the Agreement by the Second Respondent. However, the Second Respondent failed to execute the registered Sale Deed inspite of several requests and, therefore, the present appellant filed Original Suit No.605 of 1996 before the Subordinate Judge, Pondicherry for specific performance of the Sale Agreement which suit was later on transferred to Sub Court, Yanam and was renumbered as Original Suit No.31 of 2000. The said suit is still pending.

4. In the year 2000, the first respondent, who is none else but the wife of the second respondent filed a maintenance case being OP No.34 of 2000 before the Family Court, Yanam. She filed one IA No.582 of 2000 seeking an injunction restraining the second respondent from alienating the schedule properties and this application was granted on 17.2.2000. This petition was also transferred to the Sub Court Yanam and was re- numbered as OS No.63 of 2000. Thereafter this suit was decreed on 22.1.2002. Execution Petition No.10 of 2002 came to be filed on the basis of the decree passed in OS No.63 of 2000 for recovery of arrears of maintenance payable by the second respondent to the first respondent. The second respondent did not pay the arrears of maintenance but instead filed IA No.4 of 2003 in OS No.63 of 2000 before Sub Court, Yanam to set aside the above decree dated 22.1.2002. However, even this application was dismissed on merits on 27.2.2003. The first respondent thereafter filed E.P. No.15 of 2002 before Sub Court, Yanam for execution of the decree dated 22.1.2002 passed in OS No.63 of 2000. A public auction was ordered in that Execution Application and the same was conducted on 2.7.2003 in which public auction the third respondent herein purchased the said suit property. The present appellant, therefore, filed a petition in E.P. No.15 of 2002 in OS No.63 of 2000 under the provisions of Order XXI Rule 58, raising objections to the said auction and to declare that the sale is subject to the appellant's claim in OS No.31 of 2000 which was pending on the file of Sub Court, Yanam. This application was numbered as Execution Application No.9 of 2003. The said application came to be dismissed by the Subordinate Court. The appellant herein filed an appeal against the said order of dismissal dated 9.9.2004. However, by its order dated 16.3.2007, the High Court of Madras dismissed CMA 3254 of 2004 holding that the application was not maintainable. The logic of the Madras High Court as well as the Trial Court seems to be that once the sale takes place during the execution, then the objection raised would be of no consequence and the application will be untenable. The High Court has thus considered the question of the stage at which the objection could be raised and has dealt with that such objection would not be tenable on the backdrop of the language of Clause (a) of proviso to Order XXI Rule 58. The stress is thus on the stage at which the objection could be raised (or the time when the objection is raised). These concurrent orders are now in challenge before us.

We have already shown that this is not the situation in law. The High Court further went on to suggest that a merely Agreement holder could not prevent the right of the auction-purchaser to get the sale confirmed. This statement is also patently incorrect statement in law. We have, therefore, no hesitation in holding that the High Court and the Trial Court were in utter error in relying on proviso to Clause (a) to Rule 58 of Order XXI CPC. The appeal has, therefore, to succeed. The Executing Court thus shall be obliged to decide the objections raised by the appellant.

17. In the above circumstances the appeal is allowed. However, in the facts and circumstances of the case, there will be no order as to costs.