Raghunath Gouda S/o Gurunath Gouda Patil Vs. Sri.g.d. Venkatesh S/o Dodda Basappa - Court Judgment

- 1 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE7H DAY OF SEPTEMBER, 2023 PRESENT THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR AND THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR REGULAR FIRST APPEAL No.100051 OF2021(-) C/W REGULAR FIRST APPEAL No.100140 OF2021IN RFA No.100051/2021 BETWEEN:

1. RAGHUNATH GOUDA S/O. GURUNATH GOUDA PATIL, AGE:

22. YEARS, OCC: AGRICULTURE, R/O. MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT.

2. KUMARI. SOUMYA D/O. GURUNATH GOUDA PATIL, AGE:

20. YEARS, OCC: STUDENT, R/O. MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT. …APPELLANTS (BY SRI. S. G. KADADAKATTI, ADVOCATE) AND:

1. SRI. G. D. VENKATESH S/O. DODDA BASAPPA, AGE:

62. YEARS, OCC: AGRICULTURE, R/O. RANJITPURA VILLAGE-583119, SANDUR TALUK, BALLARI DISTRICT.

2. SRI. SUBHAS GOUDA PATIL S/O. LATE PAKKERA GOUDA PATIL, AGED ABOUT62YEARS, OCC: AGRICULTURE, R/O. MAGALA VILLAGE-583219, - 2 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 HOOVINAHADAGALI TALUK, BALLARI DISTRICT.

3. SRI. MANJUNATHA GOUDA PATIL AGED ABOUT60YEARS, OCC: AGRICULTURE, R/O. MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT.

4. SMT. VIDYAVATHI G. PATIL, AGED ABOUT47YEARS, OCC: AGRICULTURE, R/O. MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT.

5. SMT. PRATIMA PATIL D/O. SUBHASGOUDA PATIL, W/O. NARAYAN REDDY MALLAR, AGED ABOUT31YEARS, R/O226 HOSAHALLI ROAD, MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT.

6. H. S. SAHUKAR SINC DECEASED BY HIS LRS6 SMT. SUMITRAMMA W/O. HANUMANTH REDDY, AGED ABOUT65YEARS, OCC: HOUSEHOLD WORK, R/O. MAGALA VILLAGE, HOVINAHADAGALI TALUK, VIJAYANAGAR DISTRICT. 6b SMT. REKHA D/O. HANUMANTH REDDY, W/O. NARAYANA REDDY RAYAREDDY, AGED ABOUT47YEARS, OCC: HOUSEHOLD WORK, R/O. MAGALA VILLAGE, HOOVINAHADAGALI TALUK, VIJAYANAGAR DISTRICT. 6c SMT. BHARATI D/O. HANUMANTH REDDY, W/O. RAMESH GIREDDY, AGED ABOUT45YEARS, OCC: HOUSEHOLD WORK, R/O. C/O. MADALLI ENGINEER, BEHIND VENKATESH TALKIES, NEAR PLAYGROUND, MASARI, GADAG. 6d SMT. CHITRA D/O. HANUMANTH REDDY, W/O. KRISHNA REDDY MARADDI, AGED ABOUT43YEARS, OCC: HOUSEHOLD WORK, R/O. MAGALA VILLAGE, HOOVINAHADAGALI TALUK, VIJAYANAGAR DISTRICT. 6e SMT. GEETHA D/O. HANUMANTH REDDY, W/O. MANJU YOOGI, AGED ABOUT42YEARS, OCC: HOUSEHOLD WORK, R/O. MAGALA VILLAGE, - 3 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 HOOVINAHADAGALI TALUK, VIJAYANAGAR DISTRICT. …RESPONDENTS (BY SRI. M. M. PATIL, ADV. FOR R1, SRI. U. G. KATTIMANI, ADV. FOR R2 & R3, SRI. A. R. PATIL, ADV. FOR R4, SRI. VISHALKUMAR, ADV. FOR R5, SRI. PRASHANT HOSAMANI, ADV. FOR R6 (A TO E) THIS RFA IS FILED UNDER SEC. 96 OF CPC., PRAYING THIS COURT TO, CALL FOR RECORDS AND SET ASIDE THE ORDER

DTD.26.3.2021 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, H.B.HALLI, ITINERARY CIVIL JUDGE, HOOVINAHADAGALI, IN E.P.NO.27/2018 ON I..ANO.14 AND TO ALLOW THE APPLICATION IN I.A.NO.14 IN E.P.NO.27/2018 BY ALLOWING THE APPEAL. IN RFA No.100140/2021 BETWEEN: SMT. VIDYAVATHI G. PATIL, AGED ABOUT47YEARS, OCC: AGRICULTURE, R/O. MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT. …APPELLANT (BY SRI. A. R. PATIL, ADVOCATE) AND:

1. SRI. G. D. VENKATESH S/O. DODDA BASAPPA, AGE:

62. YEARS, OCC: AGRICULTURE, R/O. RANJITPURA VILLAGE-583119, SANDUR TALUK, BALLARI DISTRICT.

2. SRI. SUBHAS GOUDA PATIL S/O. LATE PAKKERA GOUDA PATIL, AGED ABOUT62YEARS, OCC: AGRICULTURE, R/O. MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT.

3. SRI. MANJUNATHA GOUDA PATIL AGED ABOUT60YEARS, OCC: AGRICULTURE, R/O. MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT.-. 4 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 4. SMT. PRATIMA PATIL D/O. SUBHASGOUDA PATIL, W/O. NARAYAN REDDY MALLAR, AGED ABOUT31YEARS, R/O226 HOSAHALLI ROAD, MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT.

5. RAGHUNATH GOUDA S/O. GURUNATH GOUDA PATIL, AGE:

22. YEARS, OCC: AGRICULTURE, R/O. MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT.

6. KUMARI. SOUMYA D/O. GURUNATH GOUDA PATIL, AGE:

20. YEARS, OCC: STUDENT, R/O. MAGALA VILLAGE-583219, HOOVINAHADAGALI TALUK, BALLARI DISTRICT. H. S. SAHUKAR SINC DECEASED BY HIS LRS7 SMT. SUMITRAMMA W/O. HANUMANTH REDDY, AGED ABOUT65YEARS, OCC: HOUSEHOLD WORK, R/O. MAGALA VILLAGE, HOVINAHADAGALI TALUK, VIJAYANAGAR DISTRICT.

8. SMT. REKHA D/O. HANUMANTH REDDY, W/O. NARAYANA REDDY RAYAREDDY, AGED ABOUT47YEARS, OCC: HOUSEHOLD WORK, R/O. MAGALA VILLAGE, HOOVINAHADAGALI TALUK, VIJAYANAGAR DISTRICT.

9. SMT. BHARATI D/O. HANUMANTH REDDY, W/O. RAMESH GIREDDY, AGED ABOUT45YEARS, OCC: HOUSEHOLD WORK, R/O. C/O. MADALLI ENGINEER, BEHIND VENKATESH TALKIES, NEAR PLAYGROUND, MASARI, GADAG.

10. SMT. CHITRA D/O. HANUMANTH REDDY, W/O. KRISHNA REDDY MARADDI, AGED ABOUT43YEARS, OCC: HOUSEHOLD WORK, R/O. MAGALA VILLAGE, HOOVINAHADAGALI TALUK, VIJAYANAGAR DISTRICT.

11. SMT. GEETHA D/O. HANUMANTH REDDY, W/O. MANJU YOOGI, AGED ABOUT42YEARS, OCC: HOUSEHOLD WORK, R/O. MAGALA VILLAGE, HOOVINAHADAGALI TALUK, - 5 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 VIJAYANAGAR DISTRICT. …RESPONDENTS (BY SRI. M. M. PATIL, ADV. FOR R1 TO R4, SRI. S. G. KADADAKATTI, ADV. FOR R5 & R6, SRI. PRASHANT HOSAMANI, ADV. FOR R7 TO R11) THIS RFA IS FILED UNDER SEC. 96 OF CPC, PRAYING THIS COURT TO, CALL FOR RECORDS AND SET ASIDE THE ORDER

DTD.26.03.2021 PASSED BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, H. B. HALLI, ITINERARY SR. CIVIL JUDGE, HOOVINAHADAGALI, IN EP NO.27/2018 ON THE APPLICATION FILED UNDER ORDER

XXI RULE89READ WITH SECTION151OF CPC AND TO ALLOW THE APPLICATION OF THE APPELLANT FILED IN EP No.27/2018 BY ALLOWING THE APPEAL. THESE APPEALS COMING ON FOR ORDER

S THIS DAY, RAMACHANDRA D. HUDDAR J., DELIVERED THE FOLLOWING: JUDGMENT

“i) Whether JDR No.3 can seek setting aside of auction sale of the property attached in Execution Proceedings No.27/2018?. ii) If so, in view of compromise between DHR, JDR Nos.1 and 2, auction purchaser and objector No.1, can she insist to issue sale certificate in her name as she is ready to pay/deposit the decreetal amount?. - 6 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 iii) Whether objector Nos.1 and 2 being the children of JDR Nos.1 and 3 respectively can seek determination of their rights in the execution proceedings in which JDR Nos.1 and 3 are parties?.” are the questions to be decided in these appeals.

2. These two appeals arise out of an order dated 26.03.2021 passed by Senior Civil Judge, Huvinahadagali, in Execution Petition No.27/2018. R.F.A.No.100051/2021 is filed by objector Nos.1 and 2 challenging the order passed on I.A.No.14 filed by them under Order XXI Rule 97 read with Section 151 of CPC to determine the right, title or interest in the property described in the scheduled appended to the application in the said execution petition whereas R.F.A.No.100140/2021 is filed by JDR No.3 under Order XXI Rule 89 of CPC to set aside the auction sale dated 28.04.2018 conducted by the Executing Court.-. 7 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 3. Parties to these appeals are referred as per their ranks before the Executing Court for the purpose of convenience.

4. The brief facts leading up to these execution appeals are as under: The DHR filed a suit against JDR Nos.1 to 3 in O.S.No.52/2009 on the file of Prl. Sr. Civil Judge and JMFC, Hospet, seeking the relief of specific performance of contract based on agreement of sale dated 04.08.2008 executed by JDR Nos.1 to 3 being defendants in the said suit in respect of landed property bearing Sy.No.251A measuring 7 acres 15 cents situated at Magala village. It was alleged in the said suit that JDR Nos.1 to 3 executed the said agreement of sale agreeing to sell the suit schedule property for Rs.5,73,757/- and received Rs.2,50,000/- on 04.08.2008. Plaintiff/DHR further paid Rs.1,75,000/- to the defendants on 18.10.2008. In all he paid Rs.4,25,000/-. In the said suit, defendant Nos.1 and 2 i.e., JDR Nos.1 and 2 were placed exparte. It was JDR - 8 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 No.3 i.e., defendant No.3 who contested the suit by filing written statement. On contest, the said suit came to be decreed by granting the relief of refund of earnest money paid by the plaintiff/DHR and the relief of specific performance of a contract was rejected. The learned Court granted interest on the earnest money @ 24% p.a. from 04.08.2008 till realization as per the judgment and decree dated 08.10.2010.

5. This judgment and decree for refund of money was put to execution by the DHR by filing execution petition initially before Prl. Sr. Civil Judge, Hospet, in Ex.P.208/2011 and subsequently it was transferred to the Court of Sr. Civil Judge, Huvinahadagali, in view of the establishment of Sr. Civil Judge, at Huvinahadagali, and it was renumbered as Ex.P.No.27/2018.

6. Despite service of notice of the execution petition, the JDRs did not pay the decreetal amount. Therefore, the DHR took coercive steps to recover the said amount. In that process, he filed IA No.2 under Order XXI - 9 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 Rule 54 of CPC. When such an order was passed, it was JDR No.3 who made available the particulars of Sy.No.265 measuring 13 acres 28 guntas and filed a memo to attach the said property and made a submission on 22.01.2015 before the Executing Court to sell the property for satisfaction of decree. Accordingly, the Executing Court attached the said property as per the procedure and put the said property for auction. In the meantime, JDR No.1 sought recall of attachment of the attached property by filing IA No.4 but the executing court on hearing both the sides dismissed IA No.4 as per the orders dated 30.09.2015. The said order attained finality as none of the parties challenged the said order before the Appellate Forum.

7. Thereafter, as per the procedure, spot sale and court sale were conducted. 13 bidders participated. One Hanumantharedddy was the highest bidder, his bid was for Rs.60 lakhs. As per the procedure, he deposited entire auction sale consideration amount in the executing court.-. 10 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 8. Thereafter, son of JDR No.1 being the first objector and the daughter of JDR No.3 being the second objector filed IA Nos.6 and 14 respectively under Order XXI Rule 97 of CPC with a prayer to determine their rights in the property so sold in auction. JDR No.3 also filed an IA under Order XXI Rule 89 of CPC to set aside the auction sale. The auction purchaser filed IA No.12 to confirm the auction sale and prayed to dismiss IA No.6 filed by JDR No.3. In the meantime, DHR, JDR Nos.1 and 2, auction purchaser and the first objector entered into compromise and filed compromise petition under Rule 3 of Order XXIII of CPC. There was a request to release the amount as per the compromise petition. The said compromise petition was accepted by the Executing Court in part, as per the common orders passed on 26.03.2021.

9. JDR No.3 filed objections to the said compromise petition.-. 11 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 10. On hearing the contesting parties, the executing court dismissed the applications of objector Nos.1 and 2 and JDR No.3. This is how objector Nos.1 and 2 and the JDR No.3 are before this Court challenging the impugned orders on the applications filed by them respectively.

11. We have heard the arguments of both the sides and perused the records.

12. The learned counsel for JDR No.3 submits that, whatever the compromise entered into in between DHR, objector No.1, JDR Nos.1 and 2 and auction purchaser is not binding on JDR No.3. A different property was attached other than the property mentioned in the schedule appended to the plaint. It is JDR No.3 who inherited the said property from her husband. Her right is to be decided by the Court. It is his submission that without considering the said fact, the application of the JDR No.3 is dismissed by the Executing Court. In support of his submission, he took us to the provisions of Order - 12 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 XXI of CPC. Strangely enough it is submitted that as JDR No.3 is ready to deposit the amount and the sale certificate is to be issued in the name of JDR No.3.

13. Likewise, the respective counsel of both the objections submit that their rights have to be decided as they have moved the applications.

14. The learned counsel for the DHR submits that now the lis is compromised and he is ready to receive the decreetal amount already deposited. It is submitted by the counsel for the auction purchaser that he is concerned about his money so deposited and as JDR Nos.1 and 2 have compromised, he is not ready to take the property. He wants to get refund of the deposit made by him.

15. We have given our anxious consideration to the arguments of both the sides.

16. For better appreciation of the rival contentions, it is just and proper to incorporate the provisions of Order XXI Rule 97 of CPC. It reads as under: - 13 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 “97. Resistance or obstruction to possession of immovable property. –(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. [(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.].

17. When such an application is filed, it is the duty of the Court to consider the averments in petition and consider the applicability of the relevant rule. Rule 97 to Rule 106 of Order XXI of CPC envisage questions to be determined on the basis of evidence to be led by the parties. That means all the questions relating to right, title and interest in the property, which is the subject matter of execution may have to be decided by the Court and for that purpose, the parties have to be given opportunity to lead evidence both oral and documentary. But, however, the objectors or the JDRs as the case may be have to prove their rights. If there is collusion between the parties and in order to obstruct or scuttle the - 14 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 execution proceedings, if applications are filed, then, such applications are not maintainable.

18. So far as scope of Order XXI Rule 97 of CPC is concerned, while dealing with such applications, the Executing Court must be very cautious. To say, in respect of execution of a decree, Section 47 of CPC contemplates adjudication of limited nature of issues relating to execution i.e., discharge or satisfaction of the decree and is aligned with the consequential provisions of Order XXI of CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the Court reaches a decision. For the applicability of the Section, two essential requisites have to be kept in mind. Firstly, the question must be one arising between the parties and secondly, a dispute must relate to the execution, discharge or satisfaction of the decree. Thus, the object of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.-. 15 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 19. These provisions contemplate that for execution of decree, executing court must not go beyond the decree. However, it is our experience that there is steady rise of a proceedings akin to a retrial at the time of execution causing failure of realization of fruits of the decree and relief which the party has obtained from the Court. Experience has shown that various objections are filed before the Executing Court and the decree holder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is alone to benefit from the subject matter which he is otherwise not entitled to.

20. On reading the provisions of Order XXI of CPC, the general practice prevailing before the Executing Courts is that invariably in all execution applications, the Courts first issue notice under Order XXI Rule 22 of CPC to the judgment debtor to show cause as to why the decree should not be executed. However, this is often misconstrued as the beginning of a new trial. For example, the judgment debtor sometimes misuses the - 16 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 provisions of Order XXI Rule 2 and Order XXI Rule 11 to set up an oral plea, which invariably leaves no option to the Court but to record oral evidence which may be frivolous. This drags on the execution proceedings indefinitely.

21. The provisions of CPC stipulate that in civil suit, all questions and issues that may arise, must be decided in one and the same trial. Orders I and II of CPC which relate to joinder parties to suits and frame of suits with the object of avoiding multiplicity of proceedings, provide for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one stretch.

22. Sometimes a person who is not a party to the suit, at times claim separate rights or interest giving rise to the requirement of determination of new issues.

23. In relation to execution of a decree of possession of immovable property, it would be worthwhile - 17 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 to mention the twin objections which could be raised?. Whereas under Order XXI Rule 97 of CPC, a decree holder can approach the Court pointing out the obstructionists and require the Court to pass an order to deal with the obstructionists for executing the decree and for delivering the possession of the property. The obstructionists can also similarly raise objections by raising new issues which take considerable time for determination.

24. On perusal of the proceedings conducted by the Executing Court in this case, all the mandatory provisions are followed by the Executing Court. When an application is filed raising objection under Order XXI Rule 97 or Rule 99 of CPC, the Executing Court shall decide the application depending upon the facts and circumstances.

25. The Hon’ble Apex Court in GHAN SHYAM DAS GUPTA AND ANOTHER VS. ANANT KUMAR SINHA AND OTHERS1 observed that “ the provisions of the Code 1 1991 (4) SCC379- 18 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 as regards execution are of superior judicial quality than what is generally available under the other Statues and the Judge, being entrusted exclusively with administration of justice, is expected to do better. With pragmatic approach and judicial interpretations, the Court must not allow the judgment-debtor or any person instigator or raising frivolous claim to delay the execution of the decree.

26. It is submitted by learned counsel for the appellants that when the properties and the subject matter of the suit was different, then the property auctioned, unless the rights of the objectors and JDR No.3 are determined, the Execution Petition cannot be proceeded with. So far as this proposition is concerned, the learned counsel for the appellants relied upon the judgment in TAKKASEELA PEDDA SUBBA REDDI VS. PUJARI PADMAVATHAMMA AND OTHERS2. On perusal of this judgment, the facts of this case differ from the facts stated 2 AIR1977SC1789- 19 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 in the judgment. Therefore, the said judgment cannot be justifiably made applicable to the facts of this case. Therefore, the claim of the objectors to determine their rights is not permissible and they are debarred from claiming such determination in this proceeding.

27. Issuance of sale certificate is prescribed under Order XXI Rule 94 of CPC. Thus, the sale certificate can be issued only: i) to the auction purchaser purchasing the property in auction, ii) to the DHR who participates in the auction with a permission of the Court as mandated under Order XXI Rule 72 of CPC, 28. Except these two persons, there is no provision in CPC to issue sale certificates to any other person in respect of the property which is sold in a Court auction. Therefore, JDR No.3 is debarred to claim or insist to issue sale certificate in her name.-. 20 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 29. JDR No.3 has prayed to set aside the auction sale. At the time when proper and legal steps were taken by the decree holder to attach the property in execution of the decree passed in O.S.No.52/2009, no objections were raised. The property was put to auction after following all the procedures. After the auction purchase of the property in a open bid at the spot and before the Court and after deposit of the amount by the auction purchaser, JDR No.3 raised objections by filing an application under Order XXI Rule 89 CPC to set aside the auction sale. It may be an afterthought. Moreso at the instance of JDR Nos.1 and 3, these objector Nos.1 and 2 might have moved the interim applications so as to deprive the decree holder of the fruits of the decree and prevent the auction purchaser from taking back his deposited amount.

30. A limitation is prescribed under CPC for setting aside the sale. It is settled that in order to set aside an auction sale, mere proof of a material irregularity and inadequacy of price realized in a sale is not sufficient.-. 21 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 What has to be established is that there was not only inadequacy of the price, but that inadequacy was caused by reason of material irregularity or fraud. A connection has to be established between the inadequacy of the price and the material irregularity. This proposition of law has been laid down by the Hon’ble Apex Court in RADHY SHAYAM VS. SHYAM BEHARI SINGH3. The safest rule has to be followed to set aside the auction sale. The errors complained by JDR No.3 never prove any irregularity committed by the Executing Court to set aside the sale. Simply, it is alleged that no proper procedure was followed by the Executing Court. The allegations made in the affidavit annexed to the application cannot be treated as errors rendering the sale void. Already the sale is completed. Auction purchaser has deposited the bid amount. No allegation is made that because of this, substantial injury is caused to the JDR No.3. When the property has got a saleable interest and JDR No.3 has 3AIR1971SC23371970 (2) SCC405- 22 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 defaulted in payment of the decreetal amount, then now JDR No.3 has no locus standi to make any objections. Therefore, the claim of JDR No.3 that there is no proper procedure being followed by the Executing Court cannot be accepted.

31. As per the provisions of Order XXI Rule 90 (2) and (3) of CPC, the objector Nos.1 and 2 are debarred from claiming any rights in the properties sold in execution. The said provision reads as under: “(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.

32. Explanation to this Section shows that mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale - 23 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 under this rule. Thus, no action sale can be set aside for any irregularity or mistake in publishing or conducting the auction sale unless the aggrieved person proves that he has sustained substantial injury due to the same. The objector Nos.1 and 2 in this proceeding have not all pleaded or proved about the substantial injury caused to them because of this auction sale in favour of auction purchaser. Their remedy is elsewhere.

33. As stated supra, the appellants in both the appeals have not at all made out any grounds to interfere with the well reasoned order passed by the executing court. Therefore, we answer the above points in the negative.

34. Resultantly, we pass the following: ORDER

a. Appeal filed by the appellants in R.F.No.100140/2021 and R.F.A.No.100051/2021 are dismissed with costs of the respondents, - 24 - NC:

2023. KHC-D:11545-DB RFA No.100051 of 2021 C/W RFA No.100140 of 2021 b. The orders dated 26.03.2021 passed in Execution Petition No.27/2018 by the Senior Civil Judge, Hoovinahadagali, is affirmed, Transmit the entire trial court records along with copy of the judgment forthwith. Sd/- JUDGE Sd/- JUDGE JM