CIVIL PROCEDURE CODE

PROJECT REPORT
ON
SALE OF
IMMOVABLE PROPERTY
(RULE 82-94 OF ORDER XXI)

Submitted to :

Dr. KARAN JAWANDA

(PROFESSOR, UNIVERSITY INSTITUTE OF LEGAL STUDIES,
PU CHANDIGARH)

Submitted by :

Ritu Raj Meet

Section- B, 76/13
Semester 8th
Ba.LLB(h)
CIVIL PROCEDURE CODE
 CIVIL PROCEDURE CODE

Acknowledgemnt

I would like to express my special thanks of

gratitude to our teacher Dr. Karan Jawanda and
Director Dr. Sangeeta Bhalla, of University
Institute Of Legal Studies, who gave me the
golden opportunity to do this project on the
different topics of Civil Procedure Code, which
also helped me in doing a lot of research and I
came to know about so many new things.

Secondly I would also like to thank my parents

and friends who helped me a lot in finalizing this
project within the limited time frame. I would
also like to expand my deepest gratitude to all
those who have directly and indirectly guided me
in doing this project.

Ritu Raj Meet

 CIVIL PROCEDURE CODE

CONTENTS OF THE PROJECT

a) INTRODUCTION............................................................................PAGE NO 1
b) GENERAL MEANING OF EXECUTION................................................PAGE NO 2-3
c) SALE..........................................................................................PAGE NO 3
d) SALE OF IMMOVABLE PROPERTY....................................................PAGE NO 3-10
e) BIBLIOGRAPHY...........................................................................PAGE NO 11
CIVIL PROCEDURE CODE
 1

I. INTRODUCTION

II. Execution is the last stage of any civil litigation. There are three stages in litigation:
1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.
III. Implementation of litigation is also known as execution. A decree will come into
existence where the civil litigation has been instituted with the presentment of plaint.
Decree means operation or conclusiveness of judgement. Implementation of a decree
will be done only when parties has filed application in that regard. A decree or order
will be executed by court as facilitative and not as obligation. If a party is not
approaching court, then the court has no obligation to implement it suomotto. A
decree will be executed by the court which has passed the judgement. In exceptional
circumstances, the judgement will be implemented by other court which is having
competency in that regard.
IV. Execution is the medium by which a decree- holder compels the judgement-debtor to
carry out the mandate of the decree or order as the case may be. It enables the decree-
holder to recover the fruits of the judgement. The execution is complete when the
judgement-creditor or decree-holder gets money or other thing awarded to him by
judgement, decree or order.1

V. EXECUTION IN GENERAL
A. EXECUTION: MEANING

VI. The term execution has not been defined in the code. The expression execution
means enforcement or implementation or giving an effect to the order or judgement
passed by the court of justice.2Simply execution means the process for enforcing or
giving effect to the judgement of the court. 3 Execution is the enforcement of decrees
and orders by the process of court, so as to enable the decree-holder to realise the

1 Takwani, C.K., Civil Procedure with Limitation Act,1963.7th Edition.Eatern Book Compny. Pg.
616.

2 Halsburys Laws of England (4thedn.)Vol. 17 at p.232; Concise Oxford English Dictionary (2002) at
p.497

3 Overseas Aviation Engineering, In re, (1962) 3 All ER 12: 1963 Ch D 24 (per Lord Dening)
 2

fruits of the decree. The execution is complete when the judgement-creditor or decree-
holder gets money or other thing awarded to him by the judgement, decree or order.
VII.
VIII. ILLUSTRATION:
IX. A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is the
decree-holder. B is the judgement-debtor, and the amount of Rs 10,000 is the
judgement- debt or the decretal amount. Since the decree is passed against B, he is
bound to pay Rs 10,000 to A. Suppose in spite of the decree, B refuses to pay the
decretal amount to A, and A can recover the said amount from B by executing the
decree through judicial process. The principle governing execution of decree and
orders are dealt with in Sections 36 to 74( substantive law) and order 21 of the
code( procedural law).
X. Supreme Court in Ghanshyam Das v. Anant Kumar Sinha4 dealing with provision of
the code relating to execution of decree and orders, stated, so far as the question of
executability of a decree is concerned, the Civil Procedure Code contains elaborate
and exhaustive provisions for dealing with it in all aspects. The numerous rules of
Order 21 of the code take care of different situations providing effective remedies not
only to judgement-debtors and decree-holders but also to claimant objectors, as the
case may be. In an exceptional case, where provisions are rendered incapable of
giving relief to an aggrieved party in adequate measures and appropriate time, the
answer is a regular suit in the civil court.
XI. Order 21 of the Code of Civil Procedure deals with the solemn act of execution of the
decrees passed by the Courts from grassroots to the top. Ultimately, after the
judgment attains finality or where there is no stay in the execution by any Appellate or
Revisional Court, it is the Court of original jurisdiction which performs this sacred
act of implementation of the execution. It has been often seen that in view of less
number of units prescribed for execution of the decree, the executions are not give
that much time and importance as required and desired. It is only the execution, which
reveals and signifies the importance of the decrees to be passed and the pedestal of the
Court and sanctity of the document. As such, the decrees are required to be executed
with force, so that the Decree Holder having a document containing declaration of his
rights may not feel cheated or helpless by the Court even after spending decades
altogether. This Order can be divided into six parts. If the Courts deal the executions

4 (1991) 4 SCC 379: AIR 1991 Sc 2251

 3

while considering the applications/objections topic wise, it would be easy for them to
adjudicate the matter easily.
XII.
XIII. The main classification is as under:-
XIV. (1)Applications for execution and the process to be applied.
XV. (2)Stay of executions.
XVI. (3)Mode of executions.
XVII. (4)Sale of immovable property and movable property.
XVIII. (5)Adjudication of the claims and objections.
XIX. (6)Resistance and delivery of possession.
XX.

XXI. SALE OF IMMOVABLE PROPERTY

XXII. (RULES 82-94 of ORDER 21)
XXIII.
B. GENERALLY: SALE
XXIV. RULE64. Power to Order property attached to be sold and proceeds to be paid
to person entitled- Any court executing a decree may Order that any property
attached by it and liable to sale, or such portion thereof as may seem necessary to
satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient
portion thereof, shall be paid to the party entitled under the decree to receive the
same.
XXV.
XXVI. Before ordering the sale, the Court has to decide whether it is necessary to bring the
entire attached property to sale, or such portion thereof as may seem necessary to
satisfy the decree. If the property is large and the decree to be satisfied is small the
Court must bring to sale such portion of the property the proceeds of which would be
sufficient enough to satisfy the claim of the decree holder. It is immaterial whether the
property is one or several. Even if the property is one, if a separate portions could be
sold without violating the provisions of law, only such portion of property must be
sold. The sale held without examining this aspect and not in conformity with this
requirement would be illegal and without jurisdiction. After, an order of sale is made
notice is issued to Decree Holder and Judgement Debtor to settle the proclamation of
sale.
XXVII.
XXVIII.
C. SETTLEMENT OF PROCLAMATION OF SALE:
XXIX. Whenever a Court makes an order for the sale of any attached property under Order
XXI, Rule 64, it shall, if the property be land assessed to land revenue, revenue
 4

paying or revenue-free land, or any interest in such land, act as directed in the rules
hereinafter prescribed. If the property be of any other description the Court shall fix a
convenient day, not being distant more than fifteen days, for ascertaining the
particulars specified in Order XXI, Rule 66(2), and setting the proclamation of sale.
Notice of the day so fixed shall be given to the parties or their pleaders.

XXX.
D. ENQUIRY AS TO ENCUMBRANCES FROM SUB-REGISTRARs OFFICE:(1) If the
property be immovable(other than revenue-paying or revenue-free land) the Court may call
upon the Sub-Registrar within whose sub-district such property is situated to search his
registers and report, before the date fixed for settling the proclamation, to what
encumbrances, if any, the property is liable. It is very desirable that such searches should be
ordered in all cases, with a view to the prevention of fraud, but it should be noted that they
cannot be ordered if the decree-holder is not willing to pay the necessary fees. The fees
payable are at the rates prescribed in the second proviso to Article II of the table of
registration fees published with Punjab Government notification No. 22850; dated the 25th
September; 1923, as amended by Punjab Government notification No. 23759, dated the 15th
June, 1932.

XXXI. (2) the amount recovered in this behalf by the Court will first be placed in deposit and
will then be paid to the Registration Department, by means of repayment vouchers
endorsed in their favour.

XXXII. (3) The report of the Sub-Registrar shall be open to the inspection of the parties, or
their pleaders, free of charge, between the time of its receipt by the Court and the
settlement of the proclamation of sale.
XXXIII.
XXXIV.
E. RULE 82 WHAT COURTS MAY ORDER SALE:- Sales of Immovable property in
execution of decrees may be ordered by any court other than a Court of Small Causes.

XXXV. Agricultural produce- If the sale is of agricultural produce it should be conducted on

or near the place where such crop is grown or at threshing floor etc. The sale may be
postponed if fair price is not offered or if the market is held in that area till next
market sale. In case of negotiable instruments the sale can be made through
brokers.Any irregularity in conducting or publishing the sale does not vitiate the
 5

validity of the sale. If the movable property is in custody of the court it may be
physically delivered to the purchaser. If It is with a third party the delivery shall be
made by directing person in possession not to gives the same to judgement debtor or
anyone else except the purchaser.5

F. RULE 83 POSTPONEMENT OF SALE TO ENABLE THE JUDGMENT-DEBTOR TO

RAISE THE AMOUNT OF DECREE-
XXXVI. Where there is an order of sale of immovable property and Judgment Debtor can
satisfy the court that there is a reason to believe that the amount of decree be raised by
mortgage, lease or private sale of such property or any part thereof or of any other part of
immovable property of judgment debtor, the court may postpone such sale on the terms and
for such period as it thinks proper to enable him to raise the amount. The court in this case
will grant a certificate authorising judgment debtor to carry out such transactions.6
Postponement of sale is at the discretion of the court and cannot be claimed by the judgment
debtor as of right.7Therefore, an application for postponement of sale will not be allowed
where the judgment debtor had sufficient time to pay the decreetal amount 8, or where by
private alienation the decree will not be satisfied in full9.
XXXVII.
XXXVIII. The aforesaid provision is in the form of one more opportunity for the judgment
debtor to manage his own affairs and raise the best possible price and pay of the decreetal
amount. On the other hand, it has an inbuilt potential for further delaying the matter and
hence the power to impose the conditions needs to be exercised very judiciously. No sale
should be postponed and no certificate should be granted unless the whole amount due on
decree can be raised by such mortgage, lease or sale.
XXXIX.
G. DEPOSIT AND PAYMENT OF PRICE : RULE 84-87 -In every sale of immovable
property the person declared to be purchaser has to deposit 25% of amount of purchase

5 Order XXI Rule 79 of Civil Procedure Code.

6 Order XXI Rule 83 of Civil Procedure Code.

7 N.K.R.R.M Chetty Firm vs. M. Subraya Mudaliar AIR 1925 Rang 271

8 Kora Lal vs Punjab National Bank Ltd. AIR 1921 Lah 384

9 Guruswami vs Venkatasami, ILR (1891) 14 Mad 277

 6

money in the court, and in default of such payment property be forthwith be resold. The full
payment has to be made by the purchaser within 15 days of sale of such property.10
XL.
XLI. If default is made in making such payment as aforesaid the deposit may after
defraying expenses of sale be forfeited and property shall be resold and defaulting purchaser
shall forfeit all the claims to the property. Fresh proclamation of sale is required to be issued.
If the property to be sold is the share of undivided immovable property bid by co-owner will
have preferences.
XLII.
XLIII. From the viewpoint of delay in execution this is one more stage where the
proceedings be delayed on account of non-payment of remaining amount by the purchaser. It
is pertinent to note that 25% of amount is forfeited to the Government and does not go to the
decree holder.
XLIV.
XLV. Where immovable property has been sold in execution of decree any person claiming
interest in the property sold at the time of the sale or at the time of making application may
apply to have the sale set aside on his depositing in the court, 5% of the amount of purchase
money and for the payment to decree holder amount specified in proclamation of sale less the
amount of which is already paid to the judgment debtor.
XLVI.
XLVII. Where immovable property has been sold in execution of decree, the decree holder, or
the purchaser, or any other person who is entitled to share in distribution of assets , or whose
interests are affected by the sale on ground of material irregularity or fraud in publishing or
conducting it. The sale cannot be set aside unless the court is satisfied that the applicant has
sustained the substantial injury by reason of such irregularity or fraud.
XLVIII.
XLIX. The purchaser may also apply to the court to set aside the sale on the ground that the
judgment debtor has no saleable interest in the property.11
L.
LI. Where no application is made under the aforesaid provision, sale shall become
absolute and certificate will be issued to the purchaser. If the property is in the possession of
the judgment debtor or tenant, the court may pass an order to remove a person who refuses to
vacate.
LII.

10 Order XXI Rule 85 of Civil Procedure Code.

11 Order XXI Rule 94 of Civil Procedure Code

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LIII. Thus there are several rounds of contest at each stage of execution proceedings.
Unless the judgment creditor(decree holder) is really vigilant and prompt and court also
strictly refuses to interfere on technical grounds, the time involved in execution proceedings
may be substantially long. If the purchaser is dead, then the sale certificate may be given in
the name if his legal heir.
LIV.
LV. The SUPREME COURT has held that where the objections are filed by decree holder
on the ground of inadequacy of price, and value of property is undisputed, the auction
purchaser may be directed to pay higher price though he is in the possession of the property. 12
However, when no objection is taken by the concerned party at the stage of issuing
proclamation of sale and even after the receipt of notice no objections were raised, estoppels
applies against disputing the sale on inadequacy of price at a later stage.13
LVI.
H. SETTING ASIDE OF SALE: RULE 89-92

LVII. Primary condition precedent to set aside the sale of a mortgaged property is to pay the
mortgage money in addition to depositing of 5 percent of the purchase money in the
Court. While elaborating Rule89 of Order XXI of CPC, The Honble Supreme Court
in case of of Tribhovandas Purshottamdas Thakkar Vs Ratilal Motilal Patel has
held as under:-

LVIII. It was urged, however, that the mortgagee having agreed to abandon the execution
proceeding and to wait for six months for receiving payment of the mortgage dues
from the trustees, abandonment of the execution proceeding was in law equivalent to
payment to the decree-holder of the amount specified in the proclamation of sale for
the recovery of which the sale was ordered. This in our Judgment is a futile argument.
By abandoning the execution proceeding the claim of the creditor is not extinguished:
he is entitled to commence fresh proceedings for sale of the property. Rule 89 of O. 21
is intended to confer a right upon the judgment-debtor, even after the property is sold,
to satisfy the claim of the decree-holder and to compensate the auction purchaser by
paying him 5% of the purchase-money. The provision is not intended to defeat the
claim of the auction purchaser, unless the decree is simultaneously satisfied. When the
Judgment creditor agrees to extend the time for payment of the amount due for a

12 State Bank Of India vs. Ajit Jain and Others.(1995) Banking cases Pg446 (SC)

13 Sreedharan vs Union Bank Of India (1993) BC 479

 8

specified period and in the meanwhile agrees to receive interest accruing due on the
amount of the decree, the condition requiring the Judgment debtor to deposit in Court
for payment to the decree holder the amount specified in the proclamation of sale for
the recovery of which the sale was ordered cannot be deemed to be complied with.

LIX. Our attention was invited to several decisions in which it was held, that if the
judgment-debtor instead of depositing in Court the amount specified in the
proclamation of sale for recovery of which the property is sold, satisfies the claim of
the decree-holder under the decree, the requirements of O. 21, R. 89 are complied
with: Subbayya v. Venkata Subba Reddi, AIR 1935 Mad 1050;
Muthuvenkatapathy Reddy v. Kuppa Reddi, AIR 1940 Mad 427: ILR (1940)
Mad 699 (FB); Laxmansingh Baliramsingh v. Laxminarayan Deosthan Kapshi,
ILR (1947) Nag 802: (AIR 1948 Nag 127); Rabindra Nath v. Harendra Kumar,
AIR 1956 Cal 462; M. H. Shivaji Rao v. Niranjanaiah, AIR 1962 Mys 36. These
cases proceed upon an interpretation of the expression "less any amount which may
since the date of such proclamation of sale, have been received" occurring in Cl. (b)
of R. 89. It is unnecessary to venture an opinion whether these cases were correctly
decided. It is sufficient to observe that an order setting aside a court sale in execution
of a mortgage decree cannot be obtained, under O. 21, R. 89 of the Code of Civil
Procedure by merely depositing 5% of the purchase-money for payment to the auction
purchaser and persuading the decreeholder to abandon the execution proceeding.

LX. The essentials of setting aside the sale have also been elaborately discussed by
Honble Apex Court in the case of Dadi Jagannadham Vs Jamulu Ramulu14;
wherein it has been held as under:

LXI. Having given our careful consideration to the question, we are of the opinion that
there is no anomaly and that there are no different periods of limitation for making
deposits and/or filing an application for setting aside the sale. It is by virtue of Order
XXI Rule 89 C.P.C. that an application for setting aside a sale and a deposit can be
made. Order XXI Rule 89 C.P.C. does not prescribe any period within which the
application is to be made or deposit is to be made. All that Order XXI Rule 92(2)
provides is that if the deposit is made within 30 days from the date of sale and an
application is filed then the Court would have no discretion but to set aside the sale.
14 2001 (4) RCR civil 267
 9

That does not mean that if the deposit is made after 30 days the Court could not
entertain the application. If the deposit is made beyond the period of 30 days, but
within the period of 60 days, then it will be within the discretion of the Court whether
or not to grant the application. Thus, an application can be made within the period
prescribed under Article 127, Limitation Act. As an application can be made within 60
days and, as stated above, no period for making a deposit is prescribed under Order
XXI Rule 92(2) the deposit can also be made within 60 days. In our view, therefore,
the view expressed in P.K. Unni's case that Order XXI Rule 92(2) C.P.C. prescribes a
period of limitation for making a deposit is not correct.

I. OTHER CONDITIONS WHERE SALE COULD BE SET ASIDE

LXII. RULE 90 DEALS WITH SUCH SITUATIONS WHERE SALE COULD BE SET
ASIDE:

LXIII. Mere to establish irregularity or fraud is not sufficient to set aside the sale. The
applicant must establish that the material irregularity or fraud has resulted in
substantial injury to the applicant. There is no specific provision under Order XXI
Rule 67 of Civil Procedure Code that sale must be advertised in local newspaper.
Therefore, irregularities cannot be given weight in the absence of any such order
made by the court.

LXIV. The Honble Court in the case of Saheb khan Vs. Mohd. Yusufuddin and Ors 15. has
further observed as under:

LXV. Therefore before the sale can be set aside merely establishing a material irregularity
or fraud will not do. The applicant must go further and establish to the satisfaction of
the Court that the material irregularity or fraud has resulted in substantial injury to the
applicant. Conversely even if the applicant has suffered substantial injury by reason of
the sale, this would not be sufficient to set the sale aside unless substantial injury has
been occasioned by a material irregularity or fraud in publishing or conducting the
sale. (See: Dhirendra Nath Gorai and Suibal Chandra Shaw and ors. vs. Sudhir
Chandra Ghosh and others (1964) 6 SCC 101; Jaswantal Natvarlal Thakkar vs.
Sushilaben Manilal Dangarwala and others (1991) Supp. 2 SCC 691; Kadiyala
Rama Rao vs. Gutala Kahna Rao (dead) by & others (2000) 3 SCC 87).
15 (2006) AIC (SC) 1871
 10

LXVI. A charge of fraud or material irregularity under Order XXI Rule 90 must be
specifically made with sufficient particulars. Bald allegations would not do. The facts
must be established which could reasonably sustain such a charge. In the case before
us, no such particulars have been given by the respondent of the alleged collusion
between the other respondents and the auction purchaser. There is also no material
irregularity in publishing or conducting the sale. There was sufficient compliance with
the orders of Order XXI Rule 67(1) read with Order XXI Rule 54(2). No doubt, the
Trial Court has said that the sale should be given wide publicity but that does not
necessarily mean by publication in the newspapers. The provisions of Order XXI Rule
67 clearly provide if the sale is to be advertised in the local newspaper,

LXVII. there must be specific direction of Court to that effect. In the absence of such
direction, the proclamation of sale has to be made under Order XXI Rule 67(1) "as
nearly as may be in the manner prescribed by Rule 54, sub-rule(2)". Rule 54 sub-rule
(2) provides for the method of publication of notice and reads as follows:<197>

LXVIII. "(2) The order shall be proclaimed at some place on or adjacent to such property by
beat of drum or other customary mode, and a copy of the order shall be affixed on a
conspicuous part of the property and then upon a conspicuous part of the Court-house,
and also where the property is land paying revenue to the Government, in the office of
the Collector of the district in which the land is situate (and, where the property is
land situate in a village, also in the office of the Gram Panchayat, if any, having
jurisdiction over that village)"

J. ORDER XXI RULE 92 CONFIRMATION OF SALE:

LXIX. No sale of immovable property shall become absolute until it is confirmed by the
court. Where no application to set aside the sale is made under section 89,90,91 or
where such application is made is disallowed by the court, the court shall make an
order confirming the sale, and thereupon the sale shall become absolute. 16Once the
order is made under the Rule 92 confirming the sale, the title of the auction purchaser
relates back to the date of sale.17

16 Rule 92(1). See also Janak Raj v Gurdial singh, AIR 1967 SC 608

17 Section 65; see also Sagar mahila Vidyalaya v. Pandit Sadasiv

 11

LXX. If the Court has fairly, even if silently, applied its mind to the relevant considerations
before it while accepting the final bid, no probe in retrospect is permissible.
Otherwise a new threat to a certainty of court sales will be introduced.18

LXXI. Proviso to sub-rule (1) of Rule 92 as added by the Amendment Act of 1976 enacts that
where a claim against an attachment in execution of a decree has been made but the
property attached has been old, pending the determination of such claim, the sale
should not be confirmed by the court before the final disposal of such claim.19

LXXII.

LXXIII.

LXXIV.

LXXV.
LXXVI.
LXXVII.
LXXVIII.
LXXIX.
LXXX.
LXXXI.
LXXXII.
LXXXIII.
LXXXIV.
LXXXV.
LXXXVI.
LXXXVII.
LXXXVIII.
LXXXIX.
XC.
XCI.
XCII.
XCIII.
XCIV. BIBLIOGRAPHY
XCV.

XCVI. BOOKS
XCVII.

18 Kayjay Industries (P) ltd. V. Asnew Drums (P) ltd. (1974) 2 SCC 213 at p. 220

19 Statements of Objections and Reasons, Law Commissions Fifty-Fourth Report at p.207

 12

1) Tripathi, T.P, Code of Civil Procedure, 2nd edition 2008, Allahabad Law Agency
2) Thakkar,C.K, Code of Civil Procedure, 5th edition, 2003, Eastern Book Company,
Lucknow

3) Singh Avtar, the Transfer of Property Act, Universal Law Publishing Co.
XCVIII.
XCIX. WEBSITES
1) www.manupatra.com

2) www.vakilno1.com

3) www.ebc-india.com

4) www.lexis-nexis.com

C.