Bar Under Order XXI Rule 90(3) CPC Prevails Over Belated Objections to Sale of Entire Property: Commentary on G.R. Selvaraj (Dead) through LRs v. K.J. Prakash Kumar

Bar Under Order XXI Rule 90(3) CPC Prevails Over Belated Objections to Sale of Entire Property

Commentary on G.R. Selvaraj (Dead) through LRs v. K.J. Prakash Kumar & Ors, 2025 INSC 1353

I. Introduction

The decision of the Supreme Court of India in G.R. Selvaraj (Dead) through LRs. v. K.J. Prakash Kumar & Ors., Civil Appeal No. 8887 of 2011 (decided on 25 November 2025), addresses a critical tension in execution law:

  • On the one hand, the mandatory duty of the executing court under Order XXI Rules 64 and 66(2)(a) of the Code of Civil Procedure, 1908 (CPC) to consider whether only part of the attached property would suffice to satisfy the decree.
  • On the other hand, the statutory bar introduced by Order XXI Rule 90(3) CPC (post-1976 amendment), which prevents a judgment debtor from challenging an execution sale on a ground that could have been raised before the sale proclamation was settled.

The central question before the Court was whether judgment debtors, who had repeated notice of execution proceedings and participated in them, could later invalidate a 2002 court auction sale by invoking the executing court’s failure to consider sale of only a part of the property, despite not raising that objection at the appropriate stage.

The Supreme Court, speaking through Sanjay Kumar J. (with Alok Aradhe J. concurring), unequivocally held that:

Where the judgment debtor had notice of the execution proceedings and an opportunity to raise a ground before the sale proclamation was drawn up, Order XXI Rule 90(3) CPC bars him from subsequently challenging the sale on that ground, even if that ground concerns the executing court’s failure to consider selling only a part of the property under Order XXI Rule 64/Rule 66(2)(a).

This judgment significantly clarifies and strengthens the operation of Rule 90(3) CPC in the post-1976 regime and harmonizes it with earlier case law emphasizing the executing court’s duties under Rule 64 and Rule 66.

II. Factual Background and Procedural History

1. The Original Suit and Decree

  • Plaintiff / Decree Holder: Rasheeda Yasin (original respondent no. 4).
  • Defendants / Judgment Debtors:
    • Komala Ammal (mother), and
    • K.J. Prakash Kumar (son, respondent no. 1 in the appeal).
  • Cause of action: Recovery of loan amount of ₹2,00,000/- borrowed jointly on 02.03.1992 by Komala Ammal, K.J. Prakash Kumar and late K. Jagannathan (husband/father of the judgment debtors).
  • Suit: O.S. No. 9158 of 1995 (earlier C.S. No. 297 of 1995) before the City Civil Court, Chennai.
  • Decree: Ex parte decree dated 16.04.1997 directing payment of ₹3,75,000/- with interest at 18% p.a. on ₹2,00,000/- from date of plaint till realization, plus costs of ₹10,435.50.

2. Execution Proceedings

Rasheeda Yasin filed E.P. No. 199 of 1998 on 20.01.1998 for attachment and sale of the judgment debtors' residential property:

  • House and site measuring 2120 sq. ft., Door No. 90, Astabujam Road, Choolai (Old No. 43), Chennai.
  • Area is “a little less than one Ground” (1 Ground = 2400 sq. ft.).
  • As of filing of execution, the decretal amount stood at ₹4,98,145.50.

The judgment debtors initially tried to:

  • Set aside the ex parte decree, and
  • Seek time and instalments in execution.

Failing compliance, the property was ordered to be attached on 14.12.1998.

3. Multiple Attempts at Auction and Reduction of Upset Price

The execution proceedings involved several attempts at auction, each time adjusting the upset price:

  1. First Sale Proclamation (01.11.1999) – Auction on 05.01.2000
    • Valuation by decree holder: ₹10,50,000/-.
    • Estimation by Bailiff: ₹15,25,000/-.
    • Executing Court fixed upset price at ₹16,25,000/-.
    • No bids received on 05.01.2000.
  2. First Reduction Application – E.A. No. 271 of 2000
    • Filed on 10.01.2000 by decree holder seeking reduction to ₹13,25,000/-.
    • Notice issued on 18.01.2000.
    • Judgment debtor K.J. Prakash Kumar appeared on 24.02.2000 and sought time for both judgment debtors; they filed a counter on 22.03.2000.
    • After enquiry, executing Court reduced upset price to ₹14,75,000/- on 21.09.2000.
    • Sale fixed for 30.01.2001 – again, no bids.
  3. Second Reduction Application – E.A. No. 4950 of 2001
    • Decree holder sought reduction to ₹10,50,000/-.
    • Despite notice, judgment debtors did not appear on 08.11.2001; set ex parte.
    • Court fixed upset price at ₹12,00,000/-.
    • Application to set aside this order by the judgment debtors was later dismissed.
    • No bids at ₹12,00,000/- either.
  4. Third Reduction Application – E.A. No. 2017 of 2002
    • Decree holder now sought reduction to ₹10,50,000/-.
    • Despite notice, judgment debtors were absent on 11.07.2002; set ex parte.
    • Executing Court reduced upset price to ₹11,00,000/-.
    • In the resultant auction held on 12.09.2002, G.R. Selvaraj (the appellant) purchased the property for ₹11,03,000/-.

The appellant deposited the consideration; on 10.01.2003, a sale certificate was issued in his favour, and the decree holder received the sale proceeds.

4. Challenge to the Sale by Judgment Debtors

The judgment debtors then filed E.A. No. 475 of 2002 under Order XXI Rule 90 CPC to set aside the sale of 12.09.2002. Their main grounds were:

  • The upset price was reduced without notice to them.
  • The sale was not conducted at the spot of the property.
  • A bald assertion that the sale proceedings were contrary to Order XXI Rule 66 CPC (no detailed pleading).

This application was dismissed on 15.10.2004 by the IX Assistant Judge, City Civil Court, Chennai.

5. Appeals and Revision

  • C.M.A. No. 17 of 2005 before the III Additional Judge, City Civil Court, Chennai – dismissed on 13.07.2007.
  • Komala Ammal died during appeal; her daughters (K.J. Hemalatha and K.J. Padmasini) were impleaded as LRs.
  • C.R.P. (NPD) No. 2574 of 2007 before the Madras High Court – allowed on 10.02.2009; High Court:
    • Held that the executing Court had failed to consider whether sale of part of the property would satisfy the decree, as required by Order XXI Rule 66(2)(a).
    • Held that the sale of the entire property caused substantial injury to the judgment debtors.
    • Did not apply the bar under Order XXI Rule 90(3) CPC, despite noting it, on the footing that the duty under Rule 66(2)(a) is an independent obligation on the Court.
    • Set aside the sale dated 12.09.2002 and directed fresh steps in execution.

The auction purchaser, G.R. Selvaraj, challenged the High Court’s order before the Supreme Court. During the appeal, he died, and his legal heirs were substituted. The decree holder was deleted as a respondent (having been paid and no longer a necessary party).

III. Summary of the Supreme Court’s Judgment

  1. The Supreme Court held that Order XXI Rule 90(3) CPC operates as a complete bar to an application to set aside a sale based on a ground that the applicant could have raised before the date on which the proclamation of sale was drawn up.
  2. The Court emphasized that:
    • The judgment debtors had been given notice at multiple stages of the execution proceedings, including the applications to reduce the upset price.
    • They had actively participated at least at an earlier stage by filing a counter to the first reduction application, and then chose to absent themselves.
  3. In these circumstances, the judgment debtors were precluded from later contending that:
    • The entire property should not have been sold, and
    • A sale of only a part of the property would have sufficed.
  4. The Supreme Court distinguished cases where no notice had been given to the judgment debtor; in such situations, Rule 90(3) cannot apply, and the sale may be void.
  5. The Court held that the High Court erred in:
    • Recognizing the statutory bar under Rule 90(3), but
    • Refusing to apply it on the assumption that the executing court’s duty under Rule 66(2)(a) operates independently, irrespective of the judgment debtor’s conduct.
  6. The Supreme Court set aside the High Court’s order dated 10.02.2009 and restored:
    • The order of the III Additional Judge, City Civil Court, Chennai (CMA No. 17 of 2005), and
    • The original order of the IX Assistant Judge, City Civil Court, Chennai dated 15.10.2004 dismissing E.A. No. 475 of 2002.
  7. The appeal was allowed; no order as to costs.

IV. Statutory Framework and Key Legal Issues

1. The Core Issue

The Court framed the central issue succinctly (para 10):

Whether Order XXI Rule 90(3) CPC has an overriding effect, barring the judgment debtors from seeking invalidation of the sale on a ground which they could have but never raised, namely, that sale of the entire property was unnecessary and only a part might have sufficed to satisfy the decree.

2. Relevant Provisions of the CPC

(a) Order XXI Rule 64 – Power to Order Sale of Property

Though not set out in full in the judgment, Rule 64 lays down that the Court may order sale of such property, or so much of it, as may be necessary to satisfy the decree. This provision has been judicially interpreted to mean:

  • The executing Court’s jurisdiction to sell extends only so far as is necessary to satisfy the decretal amount.
  • Sale beyond that amount, when unnecessary, is illegal and without jurisdiction.

(b) Order XXI Rule 66 – Proclamation of Sale

Rule 66 deals with the contents and settlement of the sale proclamation. Of particular relevance:

  • Rule 66(2)(a) – the proclamation shall specify, as fairly and accurately as possible, the property to be sold and its value.
  • The Court must settle these terms after notice to the judgment debtor, allowing him to participate in the process and offer his valuation or objections.
  • Under the case law, this is tied to the Court’s duty under Rule 64 to consider whether partial sale of the property would suffice.

(c) Order XXI Rule 90 – Application to Set Aside Sale

Prior to 1976 Amendment

Rule 90 earlier allowed a sale to be set aside on the ground of “material irregularity or fraud” in publishing or conducting the sale, subject to proof of substantial injury. It did not contain any express bar akin to sub-rule (3).

Post-1976 Amendment

The amended Rule 90 (quoted in para 10 of the judgment) now reads:

  • Sub-rule (1): Expands locus standi to include the purchaser as an applicant to set aside sale for material irregularity or fraud.
  • Sub-rule (2): Continues the requirement that no sale shall be set aside unless the applicant has sustained substantial injury by reason of such irregularity or fraud.
  • Sub-rule (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.”

Sub-rule (3) introduces a clear preclusion mechanism: if a ground was available to the applicant before the sale proclamation, and he failed to raise it, he cannot later use that ground to seek setting aside of the sale.

V. Precedents Cited and Their Influence

1. Ambati Narasayya v. M. Subba Rao, 1989 Supp (2) SCC 693

This case dealt with an execution sale conducted in 1976, i.e., before the 1976 amendment of Rule 90. The key holdings were:

  • The executing Court must apply its mind to whether sale of the entire property is necessary or whether sale of a part would suffice to satisfy the decree.
  • Sale of the entire 10 acres for ₹17,000/- to satisfy a decree of ₹2,400/- was held unnecessary and illegal.
  • The Court underscored that under Order XXI Rule 64, the executing Court’s jurisdiction is limited to selling only so much of the property as is necessary to satisfy the decree.

This decision highlighted the legislative mandate and duty of the executing court: it must not mechanically sell the entire property.

2. Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma, (1977) 3 SCC 337

Here again, the Court dealt with execution sales where properties in two villages were sold for the same decree:

  • Property in “D” village fetched ₹16,880, sufficient to meet the decretal amount.
  • Despite this, property in “G” village was also sold for ₹12,000.
  • The Supreme Court set aside the sale of the second property, holding that the Court lacked jurisdiction to sell more property than was necessary to satisfy the decree.

This further reinforced the principle that the power to sell is strictly limited to what is necessary to satisfy the decree.

Relevance in the present case: Both Ambati Narasayya and Takkaseela laid the foundation for the doctrine that an executing court must confine its sale to the portion of property required to satisfy the decree. However, both decisions predate the 1976 introduction of sub-rule (3) to Rule 90 and did not address the bar on belated objections.

3. Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh, (1994) 1 SCC 131

This was the most crucial precedent for the present case. It dealt with:

  • An execution sale held on 06.07.1979 (post-1976 amendment).
  • No notice had been served on the judgment debtor.
  • No proper sale proclamation and no opportunity for the judgment debtor to be heard on valuation or other terms.

Key principles laid down:

  1. Order XXI Rule 66(1) and (2) require that:
    • The proclamation must be settled after notice to the judgment debtor.
    • All relevant details, including value, must be fairly and accurately recorded.
  2. Absence of notice to the judgment debtor causes irremediable prejudice, as he is denied the opportunity to:
    • Offer his valuation, and
    • Bring bidders to secure a fair price.
  3. A sale held without notice to the judgment debtor is a nullity, as it divests him of his property without hearing.
  4. On Rule 90(3), the Court held:
    • Sub-rule (3) acts as a kind of “caveat emptor” for the judgment debtor – he must be vigilant to object to irregularities at the proper time.
    • However, this bar presupposes that the judgment debtor had notice from the court.
    • If he had notice and nevertheless acquiesced by doing nothing, Rule 90(3) would bar subsequent challenge.
    • But where there was no notice, Rule 90(3) does not apply; the debtor cannot be said to have had a prior opportunity.

The present Supreme Court judgment quotes and relies heavily on Desh Bandhu Gupta, particularly its observation:

“...If he had notice from court and acquiesced by taking no action before the date of sale, he would be precluded to assail its legality or correctness thereafter.”

4. Bhikchand S/o Dhondiram Mutha v. Shamabai Dhanraj Gugale, 2024 INSC 411

This recent decision, also involving execution sale, reaffirmed:

  • The executing court’s obligation to consider whether sale of a part of the property would suffice under Order XXI Rule 66(2),
  • Relying on Ambati Narasayya and Takkaseela.

However, the present judgment notes that Bhikchand did not involve the application of Order XXI Rule 90(3). Hence, the precise question in the present case—interaction between Rule 66(2)(a) duty and Rule 90(3) bar—remained open until now.

VI. The Supreme Court’s Legal Reasoning

1. The Role and Reach of Order XXI Rule 90(3)

The Court holds (para 17) that post-1976, when an application is filed under Rule 90 to set aside an execution sale:

  • The applicant must demonstrate that the ground relied upon could not have been raised on or before the date on which the proclamation was drawn up.
  • If the ground could have been raised earlier, but the applicant failed to do so, Rule 90(3) bars him from litigating that ground later.

This applies equally to:

  • Grounds alleging material irregularity in the settlement of the proclamation (e.g., valuation, extent of property to be sold), and
  • Grounds alleging failure to test whether a partial sale of the property would suffice to satisfy the decree (linked to Rule 64 and Rule 66(2)(a)).

2. Distinction Based on Notice to Judgment Debtor

Drawing from Desh Bandhu Gupta, the Court makes a clear distinction:

  • Where there was no notice to the judgment debtor:
    • Rule 90(3) cannot bar a later challenge.
    • Absence of notice itself renders the sale vulnerable, even void, because the debtor had no opportunity to object prior to the proclamation or sale.
  • Where there was due notice:
    • The debtor is expected to be vigilant.
    • If he does not raise available grounds (e.g., partial sale would suffice, property valuation, procedural defects), he is deemed to have acquiesced.
    • Rule 90(3) then precludes him from re-agitating those grounds in a post-sale application.

The present case falls squarely in the second category: notice was served, and the debtors even appeared and contested at some stages.

3. Application to the Facts: Judgment Debtors’ Conduct

The Court carefully notes (para 18) that:

  • The judgment debtors had:
    • Filed applications in execution,
    • Appeared and contested the first reduction of upset price (E.A. No. 271 of 2000), and
    • Subsequently chosen not to appear despite service of notice.
  • Repeated opportunities existed to object that:
    • The entire property need not be sold, and
    • Sale of a part would satisfy the decree.
  • They failed to raise this as a ground at the correct time.

Accordingly, the Court concludes:

“Having failed to raise a material irregularity in the context of Order XXI Rule 66(2)(a) CPC at the appropriate stage... it is not open to them to now raise such a belated plea and blithely place the burden on the executing Court.”

4. Error of the High Court

The Supreme Court criticizes the High Court’s approach for two reasons:

  1. The High Court recognized that Rule 90(3) places a statutory bar on the judgment debtor but did not apply it.
  2. It proceeded on the assumption that the duty of the executing court under Rule 66(2)(a) operates independently and absolutely, such that even if the debtor, with notice, failed to raise this point, the sale could still be set aside solely on that ground.

The Supreme Court clarifies that:

  • The executing court’s duty under Rule 64 and Rule 66(2)(a) remains real and substantive.
  • But, for a judgment debtor seeking to set aside the sale under Rule 90, his remedy is conditioned by Rule 90(3).
  • He cannot ignore his own duty of vigilance and later shift all responsibility to the executing court for not considering partial sale, especially when he had a chance to raise that very issue.

5. Harmonizing Earlier Case Law with Rule 90(3)

The judgment effectively harmonizes:

  • Ambati Narasayya and Takkaseela – emphasizing the executing court’s duty and limitations on its jurisdiction to sell, with
  • Desh Bandhu Gupta – recognizing both:
    • the need for strict compliance with procedural safeguards (notice, proper proclamation), and
    • the effect of Rule 90(3) as a bar when the debtor had notice but did nothing.

The new judgment adds a key clarification: in the post-1976 regime, the debtor’s ability to invoke court’s failure under Rule 64/Rule 66 is itself subject to Rule 90(3), unless he had no notice.

VII. Simplifying Complex Legal Concepts

1. Decree, Execution Petition, and Execution Sale

  • Decree: Final decision of a civil court determining the rights and liabilities of parties (e.g., order directing payment of money).
  • Execution Petition (E.P.): Application filed by a decree holder asking the court to enforce the decree (for example, by attaching and selling the debtor’s property).
  • Execution Sale: Court-ordered auction sale of the attached property, conducted to raise money to pay off the decretal dues.

2. Upset Price

The upset price is the minimum price at which the court is willing to accept bids for the property in the auction. It is usually fixed based on:

  • Valuation given by the decree holder,
  • Local enquiries or Bailiff’s report, and
  • Court’s own assessment.

If no bids are received at the upset price, the decree holder can apply to reduce it, as occurred multiple times in this case.

3. Proclamation of Sale (Order XXI Rule 66)

Before a property is sold, the court prepares and publishes a proclamation of sale describing:

  • The property to be sold,
  • Its valuation, and
  • The amount due under the decree.

This proclamation must be settled after giving the judgment debtor an opportunity to be heard, particularly on the value and whether sale of a part of the property would suffice.

4. Material Irregularity and Substantial Injury (Order XXI Rule 90)

  • Material irregularity: Significant procedural defect in publishing or conducting the sale – e.g., no proper notice, wrong description of property, grossly inadequate valuation.
  • Substantial injury: The irregularity must cause real and meaningful loss to the applicant – e.g., property sold at a throwaway price because bidders were not informed properly.

A sale will not be set aside for minor defects unless the applicant shows substantial injury.

5. Order XXI Rule 90(3) – The “Use It or Lose It” Rule

Sub-rule (3) operates as a “use it or lose it” principle:

  • If a judgment debtor is aware of the execution proceedings and the terms of sale, he must timely raise any objections he has before the proclamation is finalized.
  • If he sits silently and then challenges the sale after it is held, relying on grounds he could have raised earlier, the court will refuse to entertain such grounds under Rule 90(3).

This promotes finality and prevents abuse of process by those who remain passive initially only to challenge the sale if it does not suit them.

VIII. Impact and Significance of the Judgment

1. For Executing Courts

The judgment reinforces that:

  • Executing courts must:
    • Scrupulously follow Order XXI Rules 64 and 66,
    • Seriously consider whether sale of a part of the property is sufficient to satisfy the decree, and
    • Give meaningful notice and opportunity to the judgment debtor to participate in fixing the terms of proclamation.
  • However, if these procedural steps are substantially complied with and the debtor had notice, the court can rely on Rule 90(3) to shield the sale from belated challenges on grounds that could have been raised earlier.

Thus, the decision both demands diligence from courts and assures them finality when the debtor has been given due opportunity.

2. For Judgment Debtors

The judgment sends a clear message to judgment debtors:

  • They must be vigilant and proactive in execution proceedings.
  • Upon receiving notice, they should:
    • Appear before the executing court,
    • Object if they believe only part of the property should be sold, or the valuation is incorrect, and
    • Raise all relevant grounds at the earliest stage.
  • Failure to do so will likely result in Rule 90(3) precluding them from later challenging the sale on those grounds.

This discourages strategic silence followed by late challenges designed to unsettle concluded sales.

3. For Auction Purchasers

From the perspective of third-party auction purchasers like G.R. Selvaraj:

  • The judgment strengthens the security and finality of court auction purchases.
  • Where notice has been duly served and the debtor has acquiesced, an auction purchaser is less vulnerable to long-delayed challenges based on technical or procedural irregularities that could have been raised earlier.

This stability is crucial for the integrity of court-auction markets; if sales could be set aside years later on grounds the debtor could have earlier raised, bidders would be reluctant to participate.

4. Doctrinal Clarification: Duty of Court vs. Bar Against Debtor

The judgment creates an important doctrinal balance:

  • Duty of the Court (Order XXI Rules 64 and 66):
    • Independent and mandatory.
    • Courts must not mechanically sell entire properties.
  • Remedy of the Judgment Debtor (Order XXI Rule 90 read with Rule 90(3)):
    • Conditioned by debtor’s conduct.
    • Debtor cannot invoke the court’s failure if he himself, with notice, neglected to raise the issue at the proper time.

Thus, the Court aligns the procedural safeguards of the CPC with the policy objective of preventing abuse by non-diligent litigants.

5. Influence on Future Litigation

Going forward, this judgment will likely be cited for the following propositions:

  1. In post-1976 execution sales, Order XXI Rule 90(3) is a powerful bar against belated challenges by judgment debtors who had notice and failed to act.
  2. Even where grounds relate to:
    • Failure to sell only part of the property, or
    • Improper fixation of upset price or valuation,
    if such grounds were available earlier, the debtor is barred from later raising them.
  3. Only in no-notice scenarios (like Desh Bandhu Gupta) does the bar under Rule 90(3) not operate, and sales may be declared void.

IX. Conclusion: Key Takeaways

  • The Supreme Court has reaffirmed the fundamental duty of executing courts under Order XXI Rule 64 and Rule 66(2)(a) CPC to consider whether sale of a part of the property is sufficient to satisfy the decree.
  • However, in the post-1976 regime, the judgment debtor’s ability to challenge a sale on that basis is itself limited by Order XXI Rule 90(3).
  • Where the judgment debtor:
    • Had notice of the execution proceedings and sale proclamation, and
    • Could have raised the objection (e.g., that only part of the property should be sold), but
    • Failed to do so,
    he is barred from later challenging the sale on that ground.
  • The High Court’s approach—treating the executing court’s duty as overriding the statutory bar in Rule 90(3)—was rejected.
  • This judgment strikes a careful balance between:
    • Protecting debtors’ procedural rights (through notice and fair proclamation), and
    • Preserving the finality of court sales and protecting bona fide auction purchasers from belated litigation.

In sum, G.R. Selvaraj v. K.J. Prakash Kumar stands as an authoritative precedent on the interplay between the executing court’s duties under Order XXI Rules 64 and 66 and the preclusive effect of Order XXI Rule 90(3) CPC, encapsulating the principle that execution law aids the vigilant, not the negligent.

Case Details

Year: 2025
Court: Supreme Court Of India

Judge(s)

Justice Sanjay Kumar

Advocates

R. AYYAM PERUMALPRAMOD DAYAL

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