INTRODUCTION

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.

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.

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.

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 having earned no fruits of the his got settled by him
from the Court even after spending decades altogether.

This Order can be divided into six parts. If the Courts deal the executions while considering
the applications/objections topic wise, it would be easy for them to adjudicate the matter easily.
The main classification is as under:-
 1. Applications for execution and the process to be applied.
2. Stay of executions.
3. Mode of executions.
4. Sale of immovable property and movable property.
5. Adjudication of the claims and objections.
6. Resistance and delivery of possession.

However, my project will solely focus on the 3rd head that is sale of movable and immovable
property and various provisions mentioned in Code of Civil Procedure relating to it.

PRINCIPLE GOVERNING SALE OF PROPERTY IN EXEUTION OF A DECREE

Sections 65 to 67of the Code of Civil Procedure lay down the basic principles governing sale
of property in execution of a decree.

Section 65: Where immovable property is sold in execution of a decree and such sale has
become absolute, the property shall be deemed to have vested in the purchaser from the time
when the property is sold and not from the time when the sale becomes absolute.

On the sale becoming absolute the property shall be deemed to have vested in the purchaser
from the time of the sale of the property and not from the time when the sale becomes absolute.
The decree-holder purchaser becomes owner from the date of sale and not merely from the date
of confirmation. Where a sale of immovable property has become absolute, the court shall grant
a certificate specifying the property sold and the name of the declared purchaser.1 This section
lays down that though the property does not vest in the auction-purchaser till the date of
continuation once the sale is confirmed and becomes absolute the, title of the auction-purchaser
shall relate back to the date of the sale itself.2

There is no implied warranty of title in a Court-sale and the maxim caveat emptor applies.
What passes to the purchaser is only the right, title and interest of the judgment-debtor with all
risks and defect of title.3 When the case is of a private sale of an immovable property, the
property vests in the purchaser at the time when the deed of sale is executed. The reason being
that a voluntary sale becomes absolute on execution and the delivery of the sale deed by the
vendor. However, in case of a Court sale, the property does not vest immediately in the
purchaser on the sale thereof. It vests in the auction-purchaser on the sale becoming absolute.

1
(Order XXI, Rule 94).
2
See also Order 21, Rule 89 to 91, CPC.
3
Ahmedabad Municipality v. Haji Abdul, AIR 1971 SC 1201.
The sale becomes absolute only on the termination of proceedings started to set aside the Court
sale or to set aside order confirming the Court sale.4

The provisions of Section 65 read with Order 21, Rule 94, CPC make it clear that the auction-
purchaser has no absolute right of ownership or title IN the immovable property sold till the
continuation of the sale and on confirmation that is, the sale becoming absolute, the auction-
purchaser acquires title from the date of the sale. But as a result of the sale the auction-purchaser
does not acquire, interest in the immovable property sold. In other words, that auction-
purchaser is one who has since after the sale, a substantial right in the immovable property
sold.5

Section 66: The section provides that no suit shall be maintained against the certified auction
purchaser on the ground that the purchase was made on behalf of the plaintiff unless he can
prove that the name of the said purchaser was inserted in the sale certificate fraudulently or
without his consent. A purchase by one person in the name of another person is called a benami
purchase. Where A under a secret understanding with B, purchases property with his own
money, but in B’s name, the purchase is said to be benami. In such a case B is merely a
benamidar or ostensible owner.

For Example: If A purchases property in B’s name at a court sale, and a certificate of sale is
issued to B, B will be conclusively deemed to be the real purchaser as against A, and no suit
will lie under this section by A against B for possession of the property, unless A can prove
that B’s name was inserted in the certificate fraudulently or without his consent. The object of
the said section is to put a stop to benami purchases at execution sales.

The section bars a suit by a person claiming to be the real and beneficial purchaser but not
defence, for it only says that no suit shall lie against the certified purchaser on the ground that
the purchase was made on behalf of the plaintiff. Thus if the real purchaser is in possession of
the property purchased and the certified purchaser brings a suit against him for possession, the
real owner is not debarred from setting up as defence that the plaintiff was only a benamidar
for him. The prohibition under section 66 should not be extended or widened. The section only
applies where a plaintiff claims or asserts a title in himself and challenges the title of the
defendant as being merely benami, it does not apply to cases where the plaintiff does not claim
a title in himself, but admitting the title of the defendant he claims possession under an

4
Narayana Pillai v. Damodran, AIR 1967 Ker 159.
5
Nidhpal v. Union of India, AIR 1966 All 360 {FB}.
agreement by which the defendant was bound to transfer the property to him. The fact that such
agreement was antecedent to the auction sale cannot bring it within the mischief of section 66.
Nor does section 66 lay down that every agreement entered into by the judgment-debtor is
necessarily bad.

For the applicability of this section, following essentials are necessary:

 That there must be a Court sale. In other words the section applies only in case of
execution sale.
 Such an execution sale and not a fictitious one.
 The suit must be against the certified purchaser or a representative on the ground that
the purchase was benami for the plaintiff or his predecessor interest.6

Exceptions to the general rule of Section 66:

1. to a suit for a declaration that the name of the certified purchaser was inserted in the
certificate fraudulently or without the consent of the real purchase i.e., where there has
been a fraudulent insertion of name in the certificate;
2. To the right of a third person to proceed against the property on the ground that it is
liable to satisfy his claim against the real owner.

Under this section the protection is available not only against the real purchaser but also against
any one claiming through him. The word of Section 66 (2) refer, the claims of creditors and
not to the claims of transferors. The latter are dealt with into Section 66 (1).7 But it does not
preclude a suit by one who does not claim through the beneficial owner, but claims through
another person.

If the plaintiff’s title depends ultimately on the benami nature of the transaction, then Section
66 would certainly be a bar but plaintiff’s title is dependent upon other facts and circumstances
like for example, the application of the general law or the carrying out of a separate contract,
the Section 66 would not be a bar.

Section 67: Power For State Government to make rules as to sale of land in execution of
decrees for payment of money.

6
C. Kotaiah v. A. Venkata Subbas, AIR 1962 AP 49 (FB).
7
S.M. Karim v. Sakina, AIR 1964 SC 1254.
The State Government may, by notification in the Official Gazette, make rules for any local
area imposing conditions in respect of the sale of any class of interests in land in execution of
decrees for the payment of money, where such interests are so uncertain or undetermined as,
in the opinion of the State Government, to make it impossible to fix their vale.

SALE GENERALLY

Any Court executing a decree may order that any property attached by it and liable to sale, or
such portion thereof as may deem 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.8 Where the property to be sold is indivisible, it is possible for
the court to sell the property as one unit and the sale proceeds realised may be considerably
more than the decree amount. But where the executing court should have stopped with the sale
of four shares which is sufficient to fully satisfy the decree, it is not empowered to sell more
than the required number of shares merely because the purchaser had money in his hands to
purchase more shares.9

The expression “necessary to satisfy the decree” indicates the legislative intent that no sale can
be allowed beyond decretal amount mentioned in the sale proclamation. In all execution Court
has to first decide whether it is necessary to bring the entire 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 only such portion of the property the proceeds of
which would be sufficient 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 portion could be sold without
violating any provision of law only such portion of the property should be sold. This is not just
a discretion but an obligation imposed on the court. The sale held without examining this aspect
and not in conformity with this mandatory requirement would be illegal and without
jurisdiction.10

Property liable to attachment and sale in execution of a decree: According to section 60 (1) of
the CPC the following property is liable to attachment and sale in execution of a decree,
namely:

 Lands,

8
Section 64, Code of Civil Procedure, 1908.
9
Soma Veerappa v. Muthurasappa Chettiar, AIR 1973 Mad 386.
10
Balakrishnan v. Malaiyandi Konar, AIR 2006 SC 1458.
  Houses or other buildings,
 Goods,
 Money,
 Bank notes,
 Cheques,
 Bills of Exchange,
 Hundies,
 Promissory notes,
 Government securities,
 Bonds or other securities for money,
 Debts,
 Share in a Corporation, and
 All other saleable property, movable or immovable, belonging to the judgment-debtor
or over which or the profits of which, he has a disposing power which he may exercise
for his own benefit.

Sales by whom conducted and how made: Save as otherwise prescnbed every sale in
execution of a decree shall be conducted by an officer of the court or by such other person as
the court may appoint in this behalf and shall be made by public auction in manner prescribed.11

Sale of attached property- When Made: The attached property can be sold (i) if the
attachment continued for one year, and (ii) even after expiry of one year if it is found that the
party is disobeying or committing breach or continuing any breach of order.

Conditions: Three formalities must be observed. Firstly, the stage of sale can come only after
one year of the order of attachment and if the disobedience continues. Secondly, there must be
an application for sale of attached property by the person in whose favour an order of injunction
has been passed. Thirdly, show cause notice should be given to the person against whom an
order of injunction has been issued. Lastly, both parties must be heard on the point of sale of
attached property.

Time of Sale: No sale hereunder shall, without the consent in writing of the judgment-debtor,
take place until after the expiration of at least fifteen days in the case of immovable property,
and of at least seven days in the case of movable property, calculated from the date on which

11
(Order XXI, Rule 65)
the copy of the proclamation has been affixed on the Court house of the Judge ordering the
sale.12

Notice: The proclamation for sale shall be drawn up after notice to the decree holder and the
judgment-debtor. It is only after the notice has been served that the proclamation is drawn up.
There is no requirement that the notice should contain the particulars mentioned in sub-rule (2)
of rule 66 of Order XXI of CPC.

Mortgagee not to bid at sale without the leave of the Court- (1) notwithstanding contained in
rule 72 a mortgagee of immovable property shall not bid for or purchase property sold in
execution of a degree on the mortgage unless the court grants him leave to bid for or purchase
the property.

(2) If leave to bid is granted to such mortgagee, then the court shall fix a reserve price as regards
the mortgagee, and unless the court otherwise directs, the reserve price shall be –

a. Not less than the amount then due for principal, interest and cost in respect of the
mortgage if the property is sold in one lot; and
b. In the case of any property sold in lots, not less than such sum as shall appear to the
Court to be properly attributable to each lot in relation to the amount then due for
principal, interest and costs on the mortgage. (Rule 72A)

Upset price and reserve price are certainly the lowest prices for which the properties will be
sold in auction. But the term “reserve price” is exclusive to mortgagee-purchasers. The term
“upset price” is used generally in respect of purchases by all others including third parties.
When upset price has been fixed the bid should commence with that price and the sale will
ultimately be held to an amount higher than that price. But in the case of reserve price, the bid
call commence with the upset price which may be an amount below the reserve price.

PROCLAMATION OF SALES BY PUBLIC AUCTION13

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. 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.

12
(Order XXI, Rule 68)
13
(Order XXI, Rule 66)
Contents of Proclamation: The sale proclamation must contain the following:

(a) Time and place of sale,

(b) Specify the property to be sold as fairly and accurately as possible
(c) The revenue assessed upon the estate or part thereof,
(d) Any encumbrance to which the property is liable,
(e) The amount for the recovery of which the sale is ordered,
(f) Other information which the Court considers necessary or material for a purchaser to
know in order to judge of the nature and value of the property.

How Proclamation made effective: The proclamation can be made effective in the following
manner:

(a) By beat of drum; or

(b) By any other customary mode; or
(c) By affixing a copy of the order on a conspicuous part of the property and upon a
conspicuous part of the Court House; or
(d) By affixing a copy of the order in the office of the collector if the property is land paying
revenue to the government; or
(e) By affixing a copy of the order in the office of the Gram Panchayat. 1f the landed
property is situated in a village.

Every application for an order for sale under Rule 66 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. 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.

Fresh proclamation must be issued where a sale is adjourned for more than 30 days.
But fresh proclamation is not necessary when the judgment-debtor consents to waive it.
SALE OF MOVABLE PROPERTY

Sale by public auction:14 (1) where movable property is sold by public auction the price of
each lot shall be paid at the time of sale or as soon after as the officer or other person holding
the sale directs, and in default of payment the property shall forthwith be re-sold.

(2) On payment of the purchase money, the officer or other person holding the sales hall grant
a receipt for the same and the sale shall become absolute.

(3) Where the movable property to be sold is a share in goods belonging to the judgment-debtor
and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid the
same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the
co-owner.

lrregularity not to vitiate sale, but any person injured may sue: - No irregularity in
publishing or conducting the sale of movable property, shall vitiate the sale; but any person
sustaining any injury by reason of such irregularity at the hand of any other person may institute
a suit against him for compensation, or (if such other person is the purchaser) for the recovery
of the specific property and for compensation in default of such recovery.

Delivery of movable property debts and shares 15: - (1) where the property sold is movable
property of which actual seizure has been made, it shall be delivered to the purchaser.

(2) Where the property sold is movable property in the possession of some person other than
the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the
person in possession prohibiting him from delivering possession of the property to any person
except the purchaser.

(3) Where the property sold is a debt not secured by a negotiable instrument, or is a share in a
corporation, the delivery thereof shall be made by a written order of the Court prohibiting the
creditor from receiving the debt or any interest thereon and the debtor from making payment
thereof to any person except the purchase, or prohibiting the person in whose name the share
may be standing from making any transfer of the share to any person except the purchaser, or
receiving payment of any dividend or interest thereon, and the manager, secretary or other

14
(Order XXI, Rule 77)
15
(Order XXI, Rule 79)
proper officer of the corporation from permitting any such transfer or making any such payment
to any person except the purchaser.

Sale of Agricultural Produce16: Place of sale of Agricultural Produce

Nature of Agricultural Produce Place

Growing crop. Near the land where the crop has grown.
Cut or gathered. Near the threshing- or place for treading out
grain or the place in which it is deposited
When sale postponed: The sale shall be postponed if:-

i. The fair price is not offered for it; or

ii. The owner of the produce or any authorized person of the owner applies for postponed
of the sale.

When sale of growing crops shall not be held? The sale of growing crops shall not be held:-

i. Where the crops from its nature admits of being stored but has not yet been stored; and
ii. Until the crop has been cut or gathered and is ready for storing.

Vesting order in case of other property17: - In the case of any movable property not
hereinabove provided for, the court may make an order vesting such property in the purchaser
or as he may direct; and such property shall vest accordingly

SALE OF IMMOVABLE PROPERTY

When Sale takes Place: Ordinarily, the consent of the judgment-debtor is necessary to make
the sale effective. Such consent must be in writing. It takes place-

a. In case of immovable property after expiry off fifteen days from the date of affixing of
the copy of the proclamation on the Court house, and
b. In case of movable property after expiry of at least seven days from the date of affixing
of the proclamation on the Court house.

Who may Conduct Sale: Sa1e must be conducted by:

1. An officer of the Court,

2. Any person appointed by the Court to conduct the sale.

16
(Order XXI, Rule 74)
17
(Order XXI, Rule 81)
Mode of Sale: Every sale must be made by public auction. Order must be issued by the Court
regarding sale by the public auction.

Manner of Sale

 Proclamation of the intended sale. It must be made in the language the court.
Proclamation must be drawn up after notice to the decree-holder and judgment-debtor.
 Every application for an order for sale must be signed and verified the manner
prescribed for signing and verification of pleadings

What Courts may order Sales: Sales of immovable property in execution of decrees may be
ordered by any court other than a court of Small Cause Court (Order XXI, Rule 82)

Right to raise objection and res judicata: The objection as to jurisdiction was not taken by
the judgment-debtor in the execution proceedings but where the sale of the immovable property
by the executing court was completely without jurisdiction, the entire execution proceedings
were null and void. As the entire execution proceedings were without jurisdiction hence null
and void, the judgment-debtor could ignore the execution including the attachment and sale of
the property and could object to his dispossession from the property in pursuance of these
proceedings after he was dispossessed. He could file an objection under section 47, Civil
Procedure Code within three years of the date of his dispossession. Accordingly, the judgment-
debtor is not barred by the principle of constructive res judicata from raising the plea of
jurisdiction in the subsequent execution sale.18

Effect on non-compliance: The deposit of 25 percent by the purchaser money immediately

after the declaration of the person as purchaser and the payment of the balance within 15 days
of the sale are mandatory. Non-compliance of such provision will make sale invalid.19 The
provisions of rule 85 of the Code of Civil Procedure, as to payment of money within the time
are mandatory and if there is default in such a payment it is a case of material illegality but of
no sale at all.20 The word "immediately" should be construed in the light of the facts and
circumstances of each case. In Venkata v. Sama and Bhim v. Sarwan it has been held by the
High Courts of Madras and Calcutta that failure to deposit 25% immediately as required by the
rule is no more than a “material irregularity” within the meaning of rule 90 which would render
the sale voidable if substantial injury has resulted by reason of such irregularity The deposit of

18
Sheikh Razan v. Jag Bahal Singh, AIR 1973 All 542.
19
Siri Bhan v. Jit Singh, AIR 1956 Pepsu 77.
20
Annappa Reddy v. S. Suresh, AIR 1995 Kant 119.
the balance of 25% of the price of the material, bid at the auction by the highest bidder, the day
after the bid can be easily constructed that he has deposited the 25% of the price of the material
“immediately”.

Procedure in default of payment: In default of payment within the period mentioned in the
last preceding rule, the deposit may, if the Court thinks fit, aha, defraying the expenses of the
sale, be forfeited to the Government and the property shall be resold and the defaulting
purchaser shall forfeit all claim to the property or to any part of the sum for which it may
subsequently be sold.21\

ADJOURNMENT OR STOPPAGE OF SALE

1) The Court may, in its discretion adjourn any sale hereunder to a specified day and hour,
and the officer conducting any such sale may in his discretion adjourn the sale recording his
reason for such adjournment

Provided that, where the sale is made in, or within the precincts of Court house, no such
adjournment shall be made without the leave of the Court

(2) Where a sale is adjourned under sub-rule (1) for a longer period than 30 days a fresh
proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.

(3) Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including
the costs of the sale) are tendered to the officer the sale, or conducting the sale, or proof is
given to his satisfaction that the amount of such debt and costhas been paid into the Court
which ordered the sale.22

When Adjournment of sale made: -The Court or the officer may in its discretion adjourn the
sale. The recording of reason is necessary for such adjournment.

Leave of the Court: No adjournment shall be made without the leave of the Court where-

1. The sale is made in the Court house, or

2. The sale is made within the precincts of the Court house.

When Court Orders Stoppage of Sale: The sale must be stopped if-

21
(Order XXI, Rule 86)
22
(Order XXI, Rule 69)
 1. Before the lot is knocked down, the debt and costs are tendered to the officer conducting
the sale, or
2. Proof is given to the satisfaction of the officer conducting the sale that the amount of
debt and costs has been paid into the Court which ordered the sale.

APPLICATION TO SET ASIDE SALE

There is no other provision under which a sale can be set aside apart from the provisions of
Order XXI Rule 89, 90 and 91.

Order XXI Rule 89: Application to set aside sale on deposit

The provisions of this rule are in the nature of an indulgence to the judgment-debtor; they give
him a last chance of getting the sale set aside before confirmation upon the terms of satisfying
the decretal debt and of paying compensation to the auction-purchaser for the loss of bargain.23
The expression “in execution of a degree includes execution of a decree for sale of mortgaged
property. This rule requires that two primary conditions relating to deposit must be fulfilled:
(l) The applicant must deposit in the Court for payment to the auction purchaser five percent
of the purchase money, (2) he must also deposit the amount specified in the proclamation of
sale less any amount received by the decree-holder since the date of proclamation of sale for
payment to the decree-holder.

Rule 89 of Order 2l permits the decree-holder and judgment-debtor to mutually cancel the
decree debt. The cancellation of the debt may be either by an adjustment or a constructive
payment or by waiver by the decree-holder. If at the time when an application under Order 21
Rule 89 is made by the judgement-debtor, the decree has been satisfied or adjusted, the deposit
of any money for payment to the decree-holder is not called for.24

Under this rule an application for setting aside a sale and a deposit can be made but it does not
prescribe any period within which the application is to be made or deposit is to be made. The
limitation for an application to set aside sale in execution of a decree, including any such
application by the judgment-debtor under Order 21 Rule 89 or 90 read with the Limitation Act
is 60 days. But under Order 21 Rule 92(2) the sale would become absolute if no deposit is made
within 30 days. This is an unfortunate state of things and the Parliament must enact the
necessary changes in law.

23
Tribhovandas v. Ratilal, AIR 1968 SC 372.
24
Ramchandra Rao v. Kutumba Rao, AIR 1967 SC 1637.
Order XXI Rule 90: Application to set aside sale on ground of irregularity or fraud

The rule has been amended to provide that as sale shall not be set aside on the ground of an
irregularity or fraud unless the applicant has sustained a substantial injury by reasons of such
irregularity or fraud. It has also been provided that no application to set aside the sale shall be
entertained on any ground which the applicant could have taken on or before the date on which
the proclamation of sale was drawn up. The expression ‘entertain’ in Proviso means ‘adjudicate
upon’ or ‘proceed to consider on merits’. It does not refer to initiation of proceeding.
Furthermore; an explanation has been added to the not, by itself, be a ground for setting aside
the sale. This rule cannot be strictly construed so as to put a fetter on the Court, due to non-
raising of the objection before proclamation of sale and the objection could be raised even at a
later stage, but where the title has already been lost and has become final, the petitioner cannot
agitate the executability of the decree in the absence of any legal title to question the correctness
of the execution.

The sale could not be set aside within the meaning of Order 21 R. 90 of CPC. The safest rule
to determine what is an irregularity and what is nullity is to see whether the party can waive
the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is nullity. 25

Order XXI Rule 91: Application by purchaser to set aside sale on ground of judgement-
debtor having no saleable interest

The purchaser at any such sale in execution of a decree any apply to the Court to set aside the
sale, on the ground that the judgement-debtor had no saleable interest in the property sold.

SALE WHEN TO BECOME ABSOLUTE OR BE SET-ASIDE

The Rule 92 contemplates that where the conditions there under are satisfied an order for
confirmation must follow. It does not give any right to the debtor to ask for postponement of
the confirmation in order to enable him to deposit the amount.26 If an application for setting
aside execution sale is dismissed than the Court has no option but to confirm the sale and no
separate application is necessary. Where after the sale but before confirmation the decree is set
aside, the purchaser nevertheless is entitled to confirmation of sale.

Sale does not become absolute on mere passing of order of continuation. It attains finality only
after disposal of well against order refusing to set aside sale. There is no difference between an

25
Dhirendra Nath Gorai v. Sudhir C. Ghosh, AIR 1964 SC 1300.
26
Hukum Chand v. Bnasilal, AIR 1968 SC 86.
appeal against order refusing to set aside sale and an appeal against order refusing to restore
application to set aside sale. As such even after passing of order confirming a sale a mortgager
can apply for deposit of mortgage money during pendency of appeal against refusing to restore
his application for setting aside sale. Further, his application to make deposit does not become
not maintainable on subsequent rejection of his application to set aside sale on merits.27

Reference may be made to Dakshyani v. Madhavan,28 wherein need for amending rule was
pointed out by the High Court and the same has been amended by CPC (Amendment) Act,
2002, section 14(I). The crux of problem can be seen why the amendment is necessary in the
Law Commission 139th Report and the problem which is mentioned by Report is as follow:

“It is clear that in the present state of the law, there is manifest discrepancy between the
provision in the Civil Procedure Code and the connected and complementary provision in the
Limitation Act. An application to set aside an execution sale under the Code of Civil Procedure,
1908 must be accompanied by the necessary deposit as provided in Order XXI Rule89 (1) of
Code of Civil Procedure. But the prescribed limitation periods for making application and for
making the deposit are different being 60 days and 30 days respectively. In theory as well as
in practice, it is manifestly clear that if an application to set aside has to be accompanied by a
deposit of the requisite amount it is pointless to give 60 days to make the application if the
deposit has to be made within 30 days. It is also pointless because the felt need of the time
rooted in the experience is that Banks take more than 30 days to sanction loans to judgment-
debtors seeking to avail of the benefit of Order XXl rule 89 CPC. If deposit cannot be made
within30 days on account of the difficulties built in the Banking system what use is it to give
him 60 days to make the application on accompany the deposit? The bottleneck arises in
obtaining the loan within 30 days, not in drafting the application in 30 days. That is why the
law prior to 1976 provides for an identical period for deposit as well as making application.
The same pattern was needed to be followed in effectuating the intention of the Legislature to
grant 60 days to the judgment-debtor to secure the loan which intention was explicitly set out
in the Objects and Reasons Clause. The need is, therefore, manifest and the Court have been
repeatedly stressing it accordingly.”

27
U. Nilan v. Kannayyan, AIR 1999 SC 3750
28
AIR 1982 Ker 126.
RE-SALE

It means a sale that has finalized and has resulted in passing the judgement-debtor’s property
to the purchaser

Conditions

1. There is a deficiency of price on a re-sale.

2. Such deficiency occurs by reason of the purchaser’s default.
3. All expenses attending such resale must be certified to the Court by the office or other
person holding the sale.

Who may Apply- Deficiency of price shall be recoverable from the defaulting purchaser at the
instance of either- (a) the decree-holder; or (b) the judgement-debtor.

When inapplicable: Rule 71 will not be attracted in a case where the sale is set aside for one
reason or the other under Order XXI, rule 92.

Notification on re-sale: Every re-sale of immovable property, in default of payment of the

purchase money within the period allowed for such payment, shall be made after the issue of a
fresh proclamation in the manner and for the period here in before prescribed for the sale.29

Deposit By purchaser and re-sale on default: -

1. On every sale of immovable property the person declared to be the purchaser shall pay
immediately after such declaration a deposit of twenty-five per cent. On the amount of
his purchase money to the officer or other person conducting the sale and in default of
such deposit, the property shall forthwith be re-sold.
2. Where the decree-holder is the purchaser and is entitled to set-off the purchase money
under rule 72, the court may dispense with the requirements of this rule.30

CONCLUSION

A decree may be executed by attachment and sale or sale without attachment of any property.
Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of movable
and immovable property. Before ordering sale, the court has to decide whether it is necessary
to bring entire attached property to sale or such portion thereof as may seem necessary to satisfy

29
Order XXI, Rule 87 of CPC, 1908.
30
Order XXI, Rule 84 of CPC, 1908.
the decree. If the property is large and decree to be satisfied is small the court must bring to
sale only such portion of the property the proceeds of which would be sufficient to satisfy the
claim of the decree holder.