REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.371 OF 2022

M/S. JAGAN SINGH & CO. …Appellant

Versus

LUDHIANA IMPROVEMENT TRUST & ORS. …Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

1.The dispute about the non-payment of acquired land under the

Land Acquisition Act, 1984 (hereinafter referred to as the ‘LA Act’) has

spanned over more than three decades.

2.Respondents no. 2 to 5 were the original owners of the land,

measuring 8 Kanals and 11 ½ Marlas, which was acquired by Ludhiana

Improvement Trust, Respondent no.1 (hereinafter referred to as “the

Respondent Trust”).

1

3.The compensation determined by the Respondent Trust was not

acceptable to the land owners, thus, reference was sought in terms of

Section 18 of the LA Act. The Land Acquisition Tribunal made an award

enhancing the compensation to the owners by determining the

compensation as Rs.4,27,068/- along with future interest at 9%, per

annum, from the date of the application. The Respondent Trust,

however, did not pay the amount while it continued to enjoy the land.

4.It appears from the list of dates that despite all requests to the

owners, the Respondent Trust did not oblige, leaving the owners with

little option but to file an execution petition in the year 1991. The

Execution Petition was, however, dismissed as unsatisfied on 21.09.1991.

5.A perusal of the order, however, shows no reason for the same

except mere sentence of the decree, holding the execution petition as

unsatisfied. On 27.09.1991, the owners filed the second execution

application for recovery of the compensation amount, along with interest,

seeking to make the recovery through attachment of property. The

details of the property, which was sought to be attached, were more

specifically described by a site plan, which was filed in the proceedings

2

and has been placed before us. The site plan shows a triangular piece of

land i.e. field on one side, Pakhowal Road towards Ludhiana on the

second side and the railway line on the hypotenuse side.

6.In the application filed under Order XXI Rule 66 of the Code of

Civil Procedure, 1908 (hereinafter referred to as ‘the said Code’) read

with Section 151 of the said Code, a proclamation of the sale of the

property, comprised of Khewat No.867, Khatauni No.971, Khasra

No.272, as per Jamabandi for the year 1988-89, Village Jawaddi, Hadbast

No.160, Tehsil and District, Ludhiana, was sought. It may be noted that

in the site plan, there is an ear marking of the godown and the chowkidar

room and the remaining land has been shown as vacant. The tentative

cost of the property, as stated in the application, is about Rs. 8 lakhs

which was sufficient to cover the recovery of Rs.4,27,068/- along with

interest at the rate of 9% per annum.

7.Once again, the notice was served upon the Respondent Trust on

12.05.1992, but elicited no response from the Respondent Trust. The

Court of Civil Judge, Senior Division, Ludhiana, issued a warrant for sale

of the attached property on 25.05.1992. Consequently, the attached

property, measuring 7000 sq. yards approximately, bearing Khasra

3

nos.271 and 272, was sold to the Appellant by way of auction conducted

by the Court Auctioneer on 12.08.1992 for a consideration of Rs.22.65

lakhs.

8.The Respondent Trust apparently woke up only thereafter and on

26.09.1992 filed an application before the Court of the Senior Sub Judge,

Ludhiana, under Order XXI Rule 90 of the said Code to set aside the ex

parte attachment and auction of the Trust’s property. It may be noted that

even during this period of time it is not as if the payments were made to

the land owners.

9.A perusal of the objection shows that it is pleaded that there was

no valid or proper service of notice though it is not disputed that there

was a service of notice. There were certain other technical objections

also raised, inter alia, alleging that no mandatory notice under Order

XXI Rule 66 of the said Code was issued or served, no proclamation of

sale by auction has been made or published, the property in question, is

not capable for attachment and sale as it is part of development scheme,

which stands already allocated for allotment under Punjab Improvement

Act read with Land Disposal Rules framed thereunder. It was, thus,

4

sought to be claimed that the Judgment Debtors did not have saleable

interest in the property. The factum of the earlier execution proceeding

was dismissed for non satisfaction of motion. This application was

contested by the Appellant, as auction purchaser, pointing out that the

warrants for attachment of the property were filed by order dated

03.10.1991. The warrant for attachment was issued on 01.04.1992,

Munadi was effected on 03.04.1992 and the property was attached on the

same date, thereafter notice under Order XXI Rule 66 of the said Code

was served on 12.05.1992, which was duly received by the Judgment

Debtor on the same date along with the copy of the execution. The sale

warrants were issued on 25.05.1992, Munadi was effected on the spot on

17.07.1992 and the auction took place on 12.08.1992. The decree holder

also contested proceedings to challenge the auction.

10.After hearing learned counsel for the parties, the Executing Court

decided Execution no. 93/1991 post framing of issues on 11.02.1993 and

recording evidence while dismissing the objections on 05.06.1993 and

upholding the sale of the land to the Appellant.

11.A perusal of the proceedings shows that Respondent Trust, as

5

objector, produced no evidence despite repeated opportunities nor even

filed the list of witnesses. This is recorded in the proceedings on

17.04.1993, 08.05.1993, 29.05.1993 (and was called on more than one

occasion). The Executing Court noticed that no specific fraud or

misrepresentation has been mentioned in the objections by the objector

nor any substantial irregularities have been pointed out. The objector has

neither deposited the decreetal amount nor the amount equal to 5% of the

purchase amount for payment to the auction purchaser as is required

under Order XXI Rule 89 of the said Code. Thus, the objections were

not even maintainable. In view of the said provision, no sale could be set

aside unless the Court is satisfied that the applicant has sustained

substantial injury by reason of irregularity or fraud in completing or

conducting the sale. For convenience, Order XXI Rule 90 of the said

Code is reproduced as under:

“ORDER XXI

EXECUTION OF DECREES AND ORDERS

........ .... .... ....

90. Application to set aside sale on ground of irregularity or

fraud: (1) Where 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 rateable distribution of assets or

whose interests are affected by the sale, may apply to the court to

6

set aside the sale on the ground of a material irregularity or fraud

in publishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraud

in publishing or conducting it unless, upon the facts proved, the

court is satisfied that the applicant has sustained substantial injury

by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be

entertained upon any ground which the applicant could have taken

on or before the date on which the proclamation of sale was drawn

up.

Explanation.- The mere absence of, or defect in, attachment of the

property sold shall not, by itself, be a ground for setting aside a

sale under this rule.” 

12.A certificate of sale dated 15.06.1993 was issued by the Court

under Order XX1 Rule 94 of the said Code confirming the sale.

13.On the Respondent Trust assailing the Executing Court’s order,

Additional District Judge, Ludhiana, rejected the same vide order dated

04.03.1994 and the High Court also dismissed the Revision Petition. The

matter finally came up before this Court in SLP filed by the Respondent

Trust, being SLP (Civil) No.22328/2004. Leave was granted and the said

appeal was decided by the judgment dated 09.06.2010 in Improvement

Trust, Ludhiana v. Ujagar Singh and Others, reported at (2010) 6 SCC

786. A reading of the order shows that what weighed this Court was that

7

the negligence of the counsels should not be blamed on the parties, as the

matter has been prosecuted after having gone unrepresented. The

impugned orders were set aside and the matter was remitted to the

Executing Court for deciding the application under Order XXI Rule 90 of

the said Code at an early date. However, being conscious of the fact that

the Appellant had been put to inconvenience and had already deposited a

huge amount of Rs.22.65 lakhs in 1992 but has not been able to get the

fruits thereof, Rs.50,000/-, as costs, were imposed on the Respondent

Trust. Thus, the first round itself reached a culmination after more than

15 years of acquisition of land but once again starting the process almost

de novo on the Executing Court taking up the proceedings again.

14.It is pleaded on behalf of the Respondent Trust that the ex parte

proceedings earlier initiated, which resulted in the order for auction of

the property, were without valid or proper service of notice, no former

proclamation for attachment of Judgement Debtor’s property, as required

under Order XXI Rule 54 of the said Code, was made and no mandatory

notice under Order XXI Rule 66 of the said Code was either issued or

served to Respondent Trust.

8

15.The question of land being part of Development Scheme was again

contended. In substance what was pleaded was that the objections, which

were pleaded earlier in the execution, were once again urged. While

contending on the dual principle of; (A) the sale was conducted with

gross material irregularities and (B) the Respondent Trust has sustained

substantial injury to their rights.

16.The objections were once again rejected by the Executing Court on

10.11.2012. A perusal of the order shows that the Executing Court

observed that the Respondent Trust, as Judgement Debtor, has not denied

that the property bearing Khasra no.271 and 272 was the same, which

was shown by way of boundaries in the site plan, and no discrepancy or

distinction between the properties attached and sold was made out.

17.On the issue of valuation raised under Order XXI Rule 66 of the

said Code, the Executing Court opined that the Judgment Debtor has

chosen not to protest the settlement terms and the Court had no objection

but to go by the valuation report of the decree holder. For convenience,

Order XXI Rule 66 of the said Code is reproduced as under:

“ORDER XXI

9

EXECUTION OF DECREES AND ORDERS

........ .... .... ....

66. Proclamation of sales by public auction.- (1) Where any

property is ordered to be sold by public auction in execution of

a decree, the court shall cause a proclamation of the intended

sale to be made in the language of such court.

(2) Such proclamation shall be drawn up after notice to the

decree holder and the judgment debtor and shall state the time

and place of sale, and specify as fairly and accurately as

possible—

(a) the property to be sold, [or, where a part of the property

would be sufficient to satisfy the decree, such part];

(b) the revenue assessed upon the estate or part of the estate,

where the property to be sold is an interest in an estate or in

part of an estate paying revenue to the government;

(c) any incumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered;

and

(e) every other thing which the court considers material for a

purchaser to know in order to judge of the nature and value of

the property:

[Provided that where notice of the date for settling the terms of

the proclamation has been given to the judgment debtor by

means of an Order under rule 54, it shall not be necessary to

give notice under this rule to the judgment debtor unless the

court otherwise directs:

Provided further that nothing in this rule shall be construed as

requiring the court to enter in the proclamation of sale its own

estimate of the value of the property, but the proclamation shall

10

include the estimate, if any, given, by either or both of the

parties.]

(3) Every application for an Order for sale under this rule shall

be accompanied by a statement signed and verified in the

manner hereinbefore prescribed for the signing and verification

of pleadings and containing, so far as they are known to or can

be ascertained by the person making the verification, the

matters required by sub-rule (2) to be specified in the

proclamation.

(4) For the purpose of ascertaining the matters to be specified in

the proclamation, the court may summon any person whom it

thinks necessary to summon and may examine him in respect to

any such matters and require him to produce any document in

his possession or power relating thereto.”

18.As regards the objection relating to the conduct of auction

proceedings, the Executing Court held that the auction purchaser had

proved due proclamation and conduct of auction sale at the spot and,

thus, drawing, signing and issuance of sale certificate is entirely under

the domain of the Court. The property was described as “plot/godown

situated at Pakhowal Road, near Railway Crossing, Ludhiana, shown as

red in the site plan attached” with the sale certificate dated 15.06.1993.

Thus, as the evidence show, the sale was not confirmed in reference to

any Khasra number, therefore, the mention of Khasra number could not

be inadvertent inclusion. The Court also upheld the objections raised by

the Appellant that the objections have not been filed by the competent

11

person and were, thus, invalid.

19.To appreciate the locational aspect we reproduce the site plan as

under:

12

20.The endeavour of the Respondent Trust to assail the aforesaid

order was rejected by the First Appellate Court confirming the judgment

of the Executing Court on 14.09.2015. Thereafter that matter went in

Civil Revision no.815/2016 before the High Court filed by the

Respondent Trust. It is relevant to note that one aspect of submission of

the Appellant was that in view of Order XXI Rule 90(3) of the said Code,

the Respondent Trust could not be heard at that stage as the grounds were

available to the Trust before the proclamation of sale was done. In this

behalf, a reference was made to the judgment in Saheb Khan v. Mohd.

Yousufuddin and Others

1

, opining that the safest rule to determine what

is an irregularity and what is a nullity is to see whether the party can

waive the objection. If the party can waive the objection, it amounts to

irregularity and in case he cannot, it is a nullity.

21.The High Court, however, in terms of the impugned judgment

dated 06.03.2018 set aside the judgments of the Executing Court and the

First Appellate Court. The impugned judgment is predicated on the

reasoning that although there were glaring irregularities, yet the sale was

confirmed. The property auctioned consisted of Khasra nos.271 and 272,

1

  (2006) 4 SCC 476

13

whereas the list of property submitted by the decree holder was only in

reference to the land in Khasra no.272.

22.On the issue of the compliance of the provisions of Order XXI

Rule 17 and Order XXI Rule 66 of the said Code, the High Court

observed that the Executing Court had failed to apply its mind since the

statutory provisions mentioned clearly stipulate that the attached

property’s price must correspond to the decretal amount and the court

must adjudicate upon whether the entire attached property or only a part

of it is required to be sold to satisfy the decree.

23.A balance was required to be maintained between the rights of the

Judgment Debtor and the auction purchaser under Order XXI Rule 90 of

the said Code as the land projected was not a barren stand-alone land, but

had a constructed building on it. The twin conditions referred to

aforesaid was established and the auction sale was set aside.

24.The aforesaid judgment has been assailed before us and notice was

issued on 24.07.2018 and the interim direction to the parties to maintain

status quo as on date was issued. Leave was granted on 07.01.2022

while making the interim order absolute.

14

Submissions on behalf of the Appellant:

25.Mr. P.S. Patwalia, learned senior counsel for the Appellant urged

that the Appellant was a bona fide successful auction purchaser having

purchased the property in a public auction with the consideration amount

of Rs.22.65 lakhs, duly deposited. The amount was paid between

13.08.1992 and 24.08.1992. The sale certificate was also issued in the

Appellant’s favour on 15.06.1993 and despite this the Appellant has not

been able to enjoy the property for 30 years due to pendency of this

litigation. On a reading of Order XXI Rule 90(3) of the said Code, it was

urged that the Respondent Trust as Judgment Debtor could not satisfy the

test by merely pointing out material irregularity but had to further

establish to the satisfaction of the Court that the material irregularity or

fraud has resulted in causing substantial injury to the Judgment Debtor.

There was no ground to have reversed the concurrent findings of the

courts below especially when the decree holder did not file any

objections at the time of presentation of the execution petition or at the

time of order of attachment or when the issuance of proclamation under

Order XXI Rule 66 of the said Code was issued. In fact they had chosen

to absent themselves. It was urged that in light of Order XXI Rule 90

15

(3), no application to set aside a sale can be entertained upon any ground

which the applicant could have taken on or before the date on which the

proclamation of sale was drawn up. The objections of the decree holder

could not be entertained at a belated stage.

26.Learned senior counsel sought to canvas that the bona fide

purchaser for value in an auction sale is treated differently than a decree

holder purchasing such properties and, in that behalf, relied upon the

judgment of this Court in Sadashiv Prasad Singh v. Harendar Singh

2

wherein it was opined that even if such a decree is set aside, the interest

of the bona fide purchaser in an auction-sale is saved.

Submissions on behalf of the Respondents:

27.Mr. Neeraj Kumar Jain, learned senior counsel appearing for the

Respondent Trust sought to support the impugned judgment on the

ground that the High Court had found material irregularities and

illegalities causing substantial injury to the Respondent Trust. The non-

disclosure at the time of filing of the application under Order XXI Rule

66 of the said Code qua the land whereby the land comprised in Khasra

No.271 had also been sold in the public auction was material as only the

2

 (2015) 5 SCC 574 (para 17 to 19)

16

land comprised in Khasra No.272 could have been sold.

28.On the delay of three decades a reference was sought to be made to

the judgment of this Court in Sugandhi (Dead) by L.Rs. & Ors. v. P.

Rajkumar

3

to contend that mere delay in disposal of the case should not

come in the way of the court to do justice between the parties. There had

been procedural lapses on the part of the Respondents in following up the

case but public property ought not to be auctioned for the errors

committed by the errant officers.

Conclusion:

29.We have given thought to the matter and the submissions of the

learned counsel and have no doubt whatsoever that the dragging of the

proceedings for three decades have been a grave injustice to the

Appellant, who have been deprived of the enjoyment of the property

despite having paid the full auction price 30 years back. Merely because

the Respondent No. 1 is an Improvement Trust does not give it a licence

to take a citizen’s right for a ride.

30.We may notice at the threshold itself that though the right in

3

 (2020) 10 SCC 706

17

property is not a fundamental right, it is still a constitutional right under

Article 300A of the Constitution of India. Thus, a person can be deprived

of the rights of the property only in a manner known to law. The

acquisition proceedings in respect of the land in question sought to

deprive the owners of their land which had to be paid for in terms of the

provisions of the LA Act. The amount of compensation was determined

by the reference court under Section 18 of the LA Act and the matter was

not taken further. Thus, both the owner and acquiring beneficiary agreed

to the compensation as determined by the Tribunal. The next step should

have been to immediately pay the amount to the owners which did not

happen. On the other hand, the owners were made to run from pillar to

post and ultimately the execution proceedings were filed six years after

the amount had been so determined. This conduct of the Respondent

Trust itself is not condonable and this is what resulted in the proceedings

for execution, the auction and the matter being dragged on for decades.

31.The fact of the first execution petition being dismissed as not

satisfied will not, in our view, preclude filing of the second execution

petition giving details of the property. In those proceedings also the

Respondent Trust chose to absent itself. The execution proceedings have

18

to proceed in accordance with the various stages as envisaged under

Order XXI of the said code and those stages were duly followed.

32.In our view, there is no irregularity or discrepancy in identification

of the property when the site plan was filed with it. We have reproduced

the site plan so as to make it explicitly clear how the bounded property

was clearly described. No doubt originally Khasra No.271 was not

mentioned and only Khasra No.272 was mentioned but that would have

been relevant if there was a problem in identification of the property and

the ownership of the property. This was not so.

33.We may also notice that when the objections were filed by the

Respondent Trust, issues were framed. On the basis of the issues framed

evidence had to be led. Despite various opportunities the Respondent

Trust did not lead any evidence and we have dealt with this aspect

factually in detail while referring to the proceedings before the Executing

Court in the first round. The second round arose only on account of the

benefit given by this Court in the first round of proceedings that the

Respondent Trust should be able to assist the Court. In fact, the

maximum indulgence which could be shown was shown to them

19

predicated largely on the fact that Respondent No.1 was an Improvement

Trust. It is a fact that in the various stages of execution proceedings what

was required to be done by the Respondent Trust was never done. It is

not one single failure. In the execution petition itself the amount to be

realised and the value of the property were both mentioned. There was

no objection by the Respondent Trust that the property was far more

valuable and, thus, only a part of the property should be sold. If one may

say, the Respondent Trust would have saved the day even at that time by

depositing the amount due to the owners. It did not do so. The fact that

ultimately the property fetched a larger price cannot be held against the

Appellant who participated in the process and offered the appropriate

price, which was accepted. The Respondent Trust did not even comply

with the requirement of Order XXI Rule 89 by depositing the decretal

amount along with 5 per cent of the auction amount. The Respondent

Trust behaved as if it had some superior right to appropriate the property

of the owners without paying for it contrary to the mandate of the LA

Act. That would be hardly called a case of fraud in such a situation.

34.We also fail to understand how the dual test of material irregularity

of fraud and substantial injury is satisfied in the present case. In fact,

20

neither part of the dual test is satisfied. The Respondent Trust cannot be

permitted to say that merely because the property was auctioned there is

some substantial injury. No doubt there were some structures shown in

the site plan itself, however, they were merely basic structures of a

godown and a quarter.

35.The Executing Court and the First Appellant Court duly supported

the reasoning based on various failures of the Judgment Debtor: (a) did

not file objections at the time of presentation of execution petition; (b)

did not file any objections at the time of order of attachment; (c) no

objections filed when proclamation under Order XXI Rule 66 of the said

Code was made; (d) no objections filed even at the time of public auction

being actually conducted.

36.Learned senior counsel for the Appellant rightly drew the attention

of this Court to Order XXI Rule 90 (3) of the said Code to contend that it

is clearly stated that no application to set aside a sale on grounds of

irregularity or fraud under the Rule can be entertained on any ground

which the applicant would have taken on or before the date on which the

proclamation of sale was drawn up. The Explanation to the Rule further

21

says that mere absence of or defect in attachment of the property sold

should not by itself be a ground for setting aside the sale under this Rule.

The Judgment Debtor/Respondent Trust failed to avail any of these

opportunities at different stages.

37.In Sadashiv Prasad Singh

4

it was emphasised by referring to the

earlier judicial precedents that a bona fide purchaser for value in auction

sale is to be treated differently than a decree holder purchasing such

property. It would be useful to set forth the relevant paragraphs as under:

“17. The learned counsel for the auction purchaser Sadashiv Prasad

Singh, in the first instance vehemently contended, that in terms of the

law declared by this Court, property purchased by a third party

auction purchaser, in compliance of a court order, cannot be interfered

with on the basis of the success or failure of parties to a proceeding, if

auction purchaser had bonafidely purchased the property. In order to

substantiate his aforesaid contention, learned counsel representing

Sadashiv Prasad Singh placed emphatic reliance, firstly, on a

judgment rendered by this Court in Ashwin S. Mehta & Anr. vs.

Custodian & Ors. (2006) 2 SCC 385. Our attention was drawn to the

following observations recorded therein: (SCC p. 407, para 70)

“70. In that view of the matter, evidently, creation of any third-

party interest is no longer in dispute nor the same is subject to

any order of this Court. In any event, ordinarily, a bona fide

purchaser for value in an auction-sale is treated differently than

a decree-holder purchasing such properties. In the former event,

even if such a decree is set aside, the interest of the bona fide

purchaser in an auction-sale is saved. (See Nawab Zain-ul-

Abdin Khan v. Mohd. Asghar Ali Khan (1887-88) 15 IA 12) The

4

 (supra)

22

said decision has been affirmed by this Court in Gurjoginder

Singh v. Jaswant Kaur (1994) 2 SCC 368.”

(emphasis supplied),”

18. On the same subject, and to the same end, learned counsel placed

reliance on another judgment rendered by this Court in Janatha

Textiles & Ors. vs. Tax Recovery Officer & Anr., (2008) 12 SCC 582,

wherein the conclusions drawn in Ashwin S. Mehta’s case (supra)

came to be reiterated. In the above judgment, this Court relied upon

the decisions of the Privy Council and of this Court in Nawab Zain-

Ul-Abdin Khan v. Mohd. Asghar Ali Khan, (1887-88) 15 IA 12; Janak

Raj vs. Gurdial Singh, AIR 1967 SC 608; Gurjoginder Singh vs.

Jaswant Kaur, (1994) 2 SCC 368; Padanathil Ruqmini Amma vs. P.K.

Abdulla, (1996) 7 SCC 668, as also, on Ashwin S. Mehta (supra) in

order to conclude, that: [Janatha Textiles case (supra) p. 586, para 18]:

“18. It is an established principle of law, that a third party

auction purchaser’s interest, in the auctioned property continues

to be protected, notwithstanding that the underlying decree is

subsequently set aside or otherwise.”

It is, therefore, that this Court in its ultimate analysis observed as

under [Janatha Textiles case (supra) pp. 588-89, para 20]:

“20. Law makes a clear distinction between a stranger who is a

bona fide purchaser of the property at an auction-sale and a

decree-holder purchaser at a court auction. The strangers to the

decree are afforded protection by the court because they are not

connected with the decree. Unless the protection is extended to

them the court sales would not fetch market value or fair price

of the property.”

(emphasis supplied)

On the issue as has been dealt with in the foregoing paragraph, this

Court has carved out one exception. The aforesaid exception came to

be recorded in Velji Khimji and Company vs. Official Liquidator of

Hindustan Nitro Product (Gujarat) Limited & Ors., (2008) 9 SCC

299, wherein it was held as under:

23

“30. In the first case mentioned above i.e. where the auction is

not subject to confirmation by any authority, the auction is

complete on the fall of the hammer, and certain rights accrue in

favour of the auction-purchaser. However, where the auction is

subject to subsequent confirmation by some authority (under a

statute or terms of the auction) the auction is not complete and

no rights accrue until the sale is confirmed by the said

authority. Once, however, the sale is confirmed by that

authority, certain rights accrue in favour of the auction-

purchaser, and these rights cannot be extinguished except in

exceptional cases such as fraud.

31. In the present case, the auction having been confirmed on

30.7.2003 by the Court it cannot be set aside unless some fraud

or collusion has been proved. We are satisfied that no fraud or

collusion has been established by anyone in this case.”

(emphasis supplied)

19. It is, therefore, apparent that the rights of an auction-purchaser in

the property purchased by him cannot be extinguished except in cases

where the said purchase can be assailed on grounds of fraud or

collusion.”

38.The mandatory nature of the twin conditions to be satisfied before

an auction sale can be set aside as provided under Order XXI Rule 90(3)

of the said Code which has been discussed by this Court in various

judicial pronouncements. We may refer to two of them as under:

i.In Saheb Khan

5

case, it was observed that satisfaction of

only one of the two conditions was not sufficient. It was

5

 (supra)

24

also observed that a charge of fraud or material irregularity

must be specifically made with sufficient particulars and

bald allegations would not do.

ii.In Chilamkurti Bala Subrahmanyam v. Samanthapudi

Vijaya Lakshmi & Anr.

6

, the aforesaid judgment was

referred to with approval.

39.We must note in the end that Order XXI of the said Code is

exhaustive and in the nature of a complete Code as to how the execution

proceedings should take place. This is the second stage after the success

of the party in the civil proceedings. It is often said in our country that

another legal battle, more prolonged, starts in execution proceedings

defeating the right of the party which has succeeded in establishing its

claim in civil proceedings. This is exactly what has happened in the

present case. The various stages of Order XXI of the said Code when

violated cannot given right to some extra indulgence merely because the

Respondent Trust is an Improvement Trust. There cannot be a licence to

prolong the litigation ad infinitum.

40.We have, thus, no hesitation in setting aside the impugned

6

 (2017) 6 SCC 770

25

judgment of the High Court dated 06.03.2018 and sustain the view taken

by the Executing Court in the order dated 10.11.2012 as sustained by the

Appellate Court in its order dated 14.09.2015. We also grant costs to the

Appellant against Respondent No.1 quantified at Rs.1 lakh. We only

hope that, at least, now the Appellant would be able to get the benefit of

using the land they purchased three decades ago.

41.The appeal is accordingly allowed.

………………………J.

[Sanjay Kishan Kaul]

………………………J.

[S. Ravindra Bhat]

....……………………J.

[M.M. Sundresh]

New Delhi.

September 02, 2022.

26