" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.6830 OF 2025 (GM - CPC) C/W WRIT PETITION No.6807 OF 2025 (GM - CPC) WRIT PETITION No.9793 OF 2025 (GM - CPC) WRIT PETITION No.9805 OF 2025 (GM - CPC) IN WRIT PETITION No.6830 OF 2025 BETWEEN: 1 . TRISHUL DEVELOPERS A REGISTERED PARTNERSHIP FIRM, HAVING ITS OFFICE AT MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001, REPRESENTED BY ITS MANAGING PARTNER, MR. NIRAJ MITTAL. 2 . MR. NIRAJ MITTAL S/O MR.O.P.MITTAL, AGED ABOUT 52 YEARS, MANAGING PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, Printed from counselvise.com 2 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 3 . MR. O. P. MITTAL S/O LATE SHRI MALIRAM MITTAL, AGED ABOUT 76 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 4 . MRS. UMA MITTAL W/O MR. O. P. MITTAL AGED ABOUT 73 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 5 . MRS. JYOTI MITTAL W/O MR. NIRAJ MITTAL AGED ABOUT 48 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. ... PETITIONERS (BY SRI S.S.NAGANAND, SR.ADVOCATE A/W SMT.RUPALI K.TRIVEDI, ADVOCATE) Printed from counselvise.com 3 AND: SMART ASSET SERVICES INDIA PVT. LTD., A COMPANY REGISTERED UNDER COMPANIES ACT, 1956 HAVING ITS OFFICE AT NO.151, 9TH MAIN, 6TH SECTOR, HSR LAYOUT, BENGALURU – 560 102 REPRESENTED BY ITS DIRECTOR MS. DIANA NINU MATHEW. ... RESPONDENT (BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR SRI C.N.MAHADESHWARAN, ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO (i) SET ASIDE/ QUASH THE ORDER DATED 28.02.2025 PASSED BY THE LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT (CCH-89), BANGALORE IN COMMERCIAL EXECUTION NO. 1366/2019 (ANNEXURE-A); (ii) DISMISS THE INTERLOCUTORY APPLICATION (I.A. NO.69/2025) DATED 01.02.2025 FILED BY THE RESPONDENT IN LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT (CCH-89), BANGALORE IN COMMERCIAL EXECUTION NO.1366/2019 (ANNEXURE-J); (iii) PERMIT THE PETITIONER TO SELL 24 RESIDENTIAL APARTMENT UNITS IN ACCORDANCE TO I.A.NO.69/2025 AND DEPOSIT THE SALE PROCEEDS BEFORE THIS HON’BLE COURT (IV) GRANT COST OF THESE PROCEEDINGS AND ETC., IN WRIT PETITION No.6807 OF 2025 BETWEEN: 1 . TRISHUL DEVELOPERS A REGISTERED PARTNERSHIP FIRM, Printed from counselvise.com 4 HAVING ITS OFFICE AT MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU - 560 001, REPRESENTED BY ITS MANAGING PARTNER, MR. NIRAJ MITTAL. 2 . MR.NIRAJ MITTAL S/O MR. O. P. MITTAL, AGED ABOUT 52 YEARS, MANAGING PARTNER, TRISHUL DEVELOPERS MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 3 . MR. O. P. MITTAL S/O LATE SHRI MALIRAM MITTAL, AGED ABOUT 76 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU - 560 001. 4 . MRS. UMA MITTAL WIFE OF MR. O. P. MITTAL AGED ABOUT 73 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. Printed from counselvise.com 5 5 . MRS. JYOTI MITTAL W/O MR. NIRAJ MITTAL AGED ABOUT 48 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. ... PETITIONERS (BY SRI S.S.NAGANAND, SR.ADVOCATE A/W SMT.RUPALI K.TRIVEDI, ADVOCATE) AND: SMART ASSET SERVICES INDIA PVT. LTD., A COMPANY REGISTERED UNDER COMPANIES ACT, 1956 HAVING ITS OFFICE AT NO.151, 9TH MAIN, 6TH SECTOR, HSR LAYOUT, BENGALURU – 560 102 REPRESENTED BY ITS DIRECTOR MS. DIANA NINU MATHEW ... RESPONDENT (BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR SRI C.N.MAHADESHWARAN, ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO (i) SET ASIDE/ QUASH THE ORDER DATED 12.11.2024 PASSED BY THE LXXXVIII ADDIL. CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT (CCH-89), BANGALORE IN COMMERCIAL EXECUTION NO. 1366/2019 (ANNEXURE-A); (II) DISMISS THE INTERLOCUTORY APPLICATION (I.A. NO.5/2024) DATED 10.06.2024 FILED BY THE RESPONDENTS IN LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT (CCH-89), BANGALORE IN COMMERCIAL Printed from counselvise.com 6 EXECUTION NO.1366/2019 (ANNEXURE-D); AND III) GRANT COST OF THESE PROCEEDINGS AND ETC., IN WRIT PETITION No.9793 OF 2025 BETWEEN: 1 . SUDHIRCHANDRA LAKHAMSHI SHAH S/O MR. LAKHAMSHI SHAH, AGED ABOUT 74 YEARS, R/A NO. 51, UDYOG BHAVAN, SONAWALA LANE, GOREGAON EAST MUMBAI – 400 063 PRESENTLY RESIDING AT: APARTMENT 8, PARKHILL, ESHER, SURREY, KT10 9NP, UNITED KINGDOM. 2 . JOTSHNA SUDHIRCHANDRA SHAH W/O MR. SUDHIRCHANDRA SHAH, AGED ABOUT 73 YEARS, R/A NO. 51, UDYOG BHAVAN, SONAWALA LANE, GOREGAON EAST MUMBAI – 400 063 PRESENTLY RESIDING AT: APARTMENT 8, PARKHILL, ESHER, SURREY, KT10 9NP, UNITED KINGDOM. 3 . DEEP SHAH S/O MR. SUDHIRCHANDRA SHAH, AGED ABOUT 45 YEARS, R/A NO. 51, UDYOG BHAVAN, SONAWALA LANE, GOREGAON EAST Printed from counselvise.com 7 MUMBAI – 400 063. PRESENTLY RESIDING AT: ”LITTLE SQUIRRELS”, 3 ALBURY ROAD, WALTON UPON THAMES, HERSHAM, SUREEY KT12 5DY, UNITED KINGDOM. ... PETITIONERS (BY SRI ADITYA NARAYAN, ADVOCATE) AND: 1 . SMART ASSEST SERVICES INDIA PVT. LTD., A REGISTERED COMPANY UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT: 8TH FLOOR, DELTA BLOCK, SIGMA TECH PARK, RAMAGONDANAHALLI, WHITEFIELD, BENGALURU – 560 066 AND ALSO HAVING ITS OFFICE AT NO.151, 9TH MAIN, 6TH SECTOR, HSR LAYOUT, BENGALURU – 560 102 REPRESENTED BY ITS AUTHORIZED SIGNATORY, MANAGING DIRECTOR MS. DIANA NINU MATHEW. 2 . TRISHUL DEVELOPERS A REGISTERED PARTNERSHIP FIRM, HAVING ITS OFFICE AT: MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001 REPRESENTED BY ITS PARTNER, Printed from counselvise.com 8 MR. NIRAJ MITTAL. 3 . MR. NIRAJ MITTAL S/O MR. O.P. MITTAL, AGED ABOUT 52 YEARS, MANAGING PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 4 . MR. O. P. MITTAL S/O LATE SHRI. MALIRAM MITTAL, AGED ABOUT 76 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 5 . MS. UMA MITTAL W/O MR. O.P. MITTAL, AGED ABOUT 73 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 6 . MS. JYOTI MITTAL W/O MR. NIRAJ MITTAL, AGED ABOUT 48 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, Printed from counselvise.com 9 NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. ... RESPONDENTS (BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR SRI C.N.MAHADESHWARAN, ADVOCATE FOR C/R-1 SRI S.S.NAGANAND, SR.ADVOCATE A/W SMT.RUPALI K.TRIVEDI, ADVOCATE FOR R-2 TO R-6) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO (I) QUASH THE ORDER DATED 28.02.2025 (ANNEXURE A) ON I.A NO.69, PASSED BY LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT (CCH-89), BANGALORE IN COMMERCIAL EXECUTION NO.1366/2019 IN INSOFAR AS THE APARTMENTS BEARING NO(S). A 702 AND A 701 IN THE APARTMENT COMPLEX NAMED ‘MITTAL PALMS’ BEING DEVELOPED BY RESPONDENT NO.2 AT SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE, NORTH TALUK, IS CONCERNED; II) DIRECT THE HON’BLE COMMERCIAL COURT TO GRANT AN OPPORTUNITY TO THE PETITIONERS TO FILE, TAKE ON RECORD AND ADJUDICATE THE APPLICATIONS UNDER ORDER XXI RULE 58 AND XXI RULE 59 FIRST BEFORE OPERATION OF THE IMPUGNED ORDER PASSED ON I.A. NO.69 FILED BY RESPONDENT NO. 1 INSOFAR AS THE APARTMENTS BEARING NO(S). A 702 AND A 701, IN THE APARTMENT COMPLEX NAMED ‘MITTAL PALMS’ BEING DEVELOPED BY RESPONDENT NO.2 AT SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE, NORTH TALUK IS CONCERNED; (III) GRANT CONSEQUENTIAL RELIEFS, TO WHICH THE PETITIONERS MAY BE ENTITLED; IV) GRANT COST OF THESE PROCEEDINGS AND ETC., IN WRIT PETITION No.9805 OF 2025 BETWEEN: 1 . DAVINDER SINGH S/O MR. SOHAN SINGH, Printed from counselvise.com 10 AGED ABOUT 80 YEARS, R/A HIG 292, 5TH MAIN, 14TH CROSS, RMV 2ND STAGE, BENGALURU – 560 094. 2 . PARKASH KAUR W/O MR. DAVINDER SINGH, AGED ABOUT 75 YEARS, R/A HIG 292, 5TH MAIN, 14TH CROSS, RMV 2ND STAGE, BENGALURU – 560 094. 3 . NITHYA K., W/O MR. PRADEEP S., AGED ABOUT 41 YEARS, R/A NO.518, 8TH MAIN, 2ND BLOCK, HMT LAYOUT, VIDYARANYAPURA, BENGALURU – 560 013. 4 . PRADEEP S., S/O MR. SETHURAMAN, AGED ABOUT 45 YEARS, R/A 518, 8TH MAIN, 2ND BLOCK, HMT LAYOUT, VIDYARANYAPURA, BENGALURU – 560 013. 5 . AARTI S. JOSHI W/O LATE MR. SALIL S. JOSHI, AGED ABOUT 51 YEARS, R/A NO. J 704, ROHAN VASANTHA, MARATHAHALLI, BENGALURU – 560 037. 6 . VIKRAM SAHGAL S/O MR. RAVINDER KUMAR SAHGAL, Printed from counselvise.com 11 AGED ABOUT 59 YEARS, R/A NO.11 D, RAHEJA TERRACES, AGA ABBAS ALI ROAD, ULSOOR, BENGALURU – 560 042. 7 . NEENU SAHGAL W/O MR. VIKRAM SAHGAL, AGED ABOUT 57 YEARS, R/A NO.11 D, RAHEJA TERRACES, AGA ABBAS ALI ROAD, ULSOOR, BENGALURU – 560 042. 8 . NEETU GUPTA D/O MR. K.G.PADIA, AGED ABOUT 47 YEARS, R/A NO. 3B TOUNNA HOUSE, NO. 6 HAUDIN ROAD ULSOOR, SIVAN CHETTY GARDENS BENGALURU NORTH – 560 042. 9 . TANU MEHTA W/O MR. RAJAT MEHTA, AGED ABOUT 48 YEARS, R/A NO. 548, ROAD NO. 86, PHASE 3, JUBILEE HILLS, HYDERABAD – 500 033. 10 . DEBASHISH MAITY S/O MR. AMAR KUMAR MAITY, AGED ABOUT 43 YEARS, R/A NO. FATHERS MICHEAL HSG, SOC, PLOT 7, S. NO.39/1/1, VISHRANTWADI, PUNE – 411 015. 11 . SUPARNA GHOSH W/O MR. DEBASHISH MAITY, AGED ABOUT 45 YEARS, Printed from counselvise.com 12 R/A NO. FATHERS MICHEAL HSG, SOC, PLOT 7, S. NO.39/1/1, VISHRANTWADI, PUNE – 411 015. 12 . M/S. FAMY FINVEST PVT. LTD. A REGISTERED COMPANY UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT: 802, NARAYAN COMPLEX, OPP. NAVRANGPURA POST OFFICE, NAVARANGPUR, AHMEDABAD, GUJARAT – 380 009 AND ALSO HAVING ITS OFFICE AT: BRADY HOUSE, 3RD FLOOR, 12-14, VEER NARIMAN ROAD, FORT, MUMBAI – 400 001 REPRESENTED BY ITS AUTHORIZED SIGNATORY, DIRECTOR MR. MAHESH KUMAR LADHA. 13 . PIYUSH SARAOGI S/O MR. HARI KISHAN SARAOGI, AGED ABOUT 37 YEARS, R/A NO. 14, N S ROAD, 2ND FLOOR, KOLKATA, WEST BENGAL – 700 001. 14 . SANJAY KRISHNA GOYAL S/O LATE DAYA KRISHNA GOYAL, AGED ABOUT 55 YEARS, R/A NO. D-1086, NEW FRIENDS COLONY, NEW DELHI – 110 025. Printed from counselvise.com 13 15 . NIDHI KHANNA W/O RACCHIT KHANNA, AGED ABOUT 32 YEARS, R/A NO. 2, LOKHANDAWLA MAIN ROAD, ANDHERI WEST, MUMBAI – 400 053. 16 . MURALIDHAR Y., S/O LATE YADAMA M., AGED ABOUT 50 YEARS, R/A NO. 8-2-703/A, ROAD NO.12, BANJARA HILLS, HYDERABAD – 500 034. 17 . SWATI AGARWAL D/O OMPRAKASH AGARWAL, AGED ABOUT 32 YEARS, R/A NO. 16A, JAL DARSHAN BUILDING, BLOCK 2A, NAPEAN SEA ROAD, MUMBAI – 400 026. 18 . ANKUSH ARENJA S/O MUKESH ARENJA, AGED ABOUT 40 YEARS, R/A SUNNY BUNGLOW NO.4, 2ND CROSS LANE, LOKHANDWALA, ANDHERI WEST, MUMBAI – 400 053. 19 . MONICA ARENJA W/O MUKESH ARENJA, AGED ABOUT 63 YEARS, R/A SUNNY BUNGLOW NO.4, 2ND CROSS LANE, LOKHANDWALA, ANDHERI WEST, MUMBAI – 400 053. Printed from counselvise.com 14 20 . NISHA RATHI W/O BHARAT RATHI, AGED ABOUT 67 YEARS, R/A NO.21, KENSIGNTON LAYOUT, BENGALURU – 560 008. ... PETITIONERS (BY SRI ADITYA NARAYAN, ADVOCATE) AND: 1 . SMART ASSET SERVICES INDIA PVT. LTD., A REGISTERED COMPANY UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT 8TH FLOOR, DELTA BLOCK, SIGMA TECH PARK, RAMAGONDANAHALLI, WHITEFIELD, BENGALURU – 560 066. AND ALSO HAVING ITS OFFICE AT NO.151, 9TH MAIN, 6TH SECTOR, HSR LAYOUT, BENGALURU – 560 102 REPRESENTED BY ITS AUTHORIZED SIGNATORY, MANAGING DIRECTOR MS. DIANA NINU MATHEW. 2 . TRISHUL DEVELOPERS A REGISTERED PARTNERSHIP FIRM, HAVING IT'S OFFICE AT MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001 REPRESENTED BY ITS PARTNER, MR. NIRAJ MITTAL. Printed from counselvise.com 15 3 . MR. NIRAJ MITTAL S/O MR. O.P. MITTAL, AGED ABOUT 52 YEARS, MANAGING PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 4 . MR. O. P. MITTAL S/O LATE SHRI. MALIRAM MITTAL, AGED ABOUT 76 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 5 . MS. UMA MITTAL W/O MR. O.P. MITTAL, AGED ABOUT 73 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, NO.6, M.G. ROAD, BENGALURU – 560 001. 6 . MS. JYOTI MITTAL W/O MR. NIRAJ MITTAL, AGED ABOUT 48 YEARS, PARTNER, TRISHUL DEVELOPERS, MITTAL TOWERS, NO.109, 'B' WING, 1ST FLOOR, Printed from counselvise.com 16 NO.6, M.G. ROAD, BENGALURU – 560 001. ... RESPONDENTS (BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR SRI C.N.MAHADESHWARAN, ADVOCATE FOR C/R-1; SRI S.S.NAGANAND, SR.ADVOCATE A/W SMT.RUPALI K.TRIVEDI, ADVOCATE FOR R-2 TO R-6) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO I) QUASH THE ORDER DATED 28.02.2025 (ANNEXURE A) ON I.A NO.69, PASSED BY LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT (CCH-89), BANGALORE IN COMMERCIAL EXECUTION NO.1366/2019 IN INSOFAR AS THE APARTMENTS BEARING NO. B 404, E 502, G 606, D 402, F 302, F 401, C 402, E 101, A 502, B 602, B 603, C 502, E 304, B 502, F 304, G 203, G 405, G 704, G 705, A 002, D 401, E 204, F 001, A 704, B 501, D 603, E 302, D 001, D 201, E 102, A 201, G 205, G 702, A 202, A 302, F 002, F 604, G 104, G 603, F 402, G 103, G 403 AND 404 IN THE APARTMENT COMPLEX NAMED ‘MITTAL PALMS’ BEING DEVELOPED BY RESPONDENT NO.2 AT SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE, NORTH TALUK, IS CONCERNED; (II) DIRECT THE HON’BLE COMMERCIAL COURT TO GRANT AN OPPORTUNITY TO THE PETITIONERS TO FILE, TAKE ON RECORD AND ADJUDICATE THE APPLICATIONS UNDER ORDER XXI RULE 58 AND XXI RULE 59 FIRST BEFORE OPERATION OF THE IMPUGNED ORDER PASSED ON I.A. NO.69 FILED BY RESPONDENT NO.1 INSOFAR AS THE APARTMENTS BEARING NO. B 404, E 502, G 606, D 402, F 302, F 401, C 402, E 101, A 502, B 602, B 603, C 502, E 304, B 502, F 304, G 203, G 405, G 704, G 705, A 002, D 401, E 204, F 001, A 704, B 501, D 603, E 302, D 001, D 201, E 102, A 201, G 205, G 702, A 202, A 302, F 002, F 604, G 104, G 603, F 402, G 103, G 403 AND 404 IN THE APARTMENT COMPLEX NAMED ‘MITTAL PALMS’ BEING DEVELOPED BY RESPONDENT NO.2 AT SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE, NORTH TALUK IS CONCERNED; (III) GRANT CONSEQUENTIAL RELIEFS, TO Printed from counselvise.com 17 WHICH THE PETITIONERS MAY BE ENTITLED (IV) GRANT COST OF THESE PROCEEDINGS AND ETC., THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER Writ Petition No.6830 of 2025 is filed challenging an order passed on I.A.No.69 of 2025 by the executing Court/LXXXVIII Additional City Civil and Sessions Judge, Commercial Court (CCH- 89), Bangalore allowing the application filed under Order 21 Rule 64 r/w Section 151 of CPC by the respondents for issuance of proclamation and sale of properties for recovery of fruits of arbitral award. Writ Petition Nos.6830 and 6807 of 2025 are preferred by the Developers/judgment debtors. The remaining two writ petitions Writ Petition Nos.9793 of 2025 and 9805 of 2025 are preferred by the buyers of apartments in the apartment complex. Therefore, the issue in the lis relates to issuance of proclamation and sale of properties for recovery of fruits of arbitral award. Printed from counselvise.com 18 2. Heard Sri S.S.Naganand, learned senior counsel along with Smt Rupali K Trivedi, appearing for petitioners in W.P.Nos.6830 of 2025 and 6807 of 2025 and respondents 2 to 6 in W.P.Nos.9793 of 2025 and 9805 of 2025; Sri Aditya Narayan, learned counsel appearing for petitioners in W.P.Nos.9793 of 2025 and 9805 of 2025 and Sri Prabhuling K. Navadgi, learned counsel appearing for the respondent in W.P.Nos.6830 of 2025 and 6807 of 2025 and respondent No.1 in W.P.Nos.9793 of 2025 and 9805 of 2025. 3. Facts in brief, germane, are as follows: - 3.1.Trishul Developers/the 1st judgment debtor (‘Developer’ for short) is a partnership firm engaged in the business of real estate and has constructed several residential and commercial projects. The said developer is said to be engaged in the business of constructing an apartment complex in Bangalore in the name and style of ‘Mittal Palms’ (hereinafter referred as the ‘subject project’). Between 2011 and 2012 the developer enters into several agreements of sale and construction agreements with several buyers who are the petitioners in the other two writ petitions. In Printed from counselvise.com 19 Writ Petition No.9805 of 2025 agreements to sell and construction agreements are executed with the home buyers in respect of apartment complex ‘Mittal Palms’ which are 43 in number and in Writ Petition No.9793 of 2025 they are two in number. On 08-12- 2012 the developer and its Managing Partner enter into service agreements with Smart Asset Services India Pvt. Ltd., (‘Smart Assets’ for short) and hired the services of the said Smart Assets to market and sell apartments of the project of Mittal Palms for a brokerage commission of 3% of the consideration received by the petitioners. 3.2. On 01-02-2013 the Smart Assets entered into 30 agreements to sell and 30 construction agreements and paid the developer a sum of ₹10/- crores against the said agreements, by contending that execution of these agreements of sale would constitute delivery of services as contemplated under the service agreement. On the same day, i.e., on 01-02-2013 Smart Assets entered into a supplemental agreement and a marketing agreement with the developer. Therefore, there were plethora of agreements to sell i.e., construction agreements and marketing agreements. Printed from counselvise.com 20 The Developer completed the shell and core in the construction, but were unable to complete the road development in the apartment complex. It is the averment that they could not do it for the reason beyond their control. Smart Assets invoking the arbitration clause, owing to the dispute that has arisen between the parties, approached the Arbitral Tribunal in A.C.No.37 of 2018 wherein Smart Assets sought for refund of the entire amount invested along with interest. 3.3. After contest, on 28-12-2018 an arbitral award comes to be passed in A.C.No.37 of 2018 allowing the claim petition and directing the developer to pay Smart Assets an amount of ₹26,92,80,169/- along with interest at 9% per annum from the date of claim statement till the date of settlement. The Arbitral Tribunal also awarded costs of arbitral proceedings at ₹6,32,000/-. When the award was not fulfilled, the decree holder filed an execution petition in Commercial Execution No.1366 of 2019 before the Commercial Court at Bangalore for enforcement of arbitral award and sought recovery of ₹26,92,80,169/- along with applicable interest and costs. The legal proceedings that were Printed from counselvise.com 21 initiated against the arbitral award by the judgment debtor failed. Therefore, the arbitral award that was passed as noted hereinabove becomes final up to the Apex Court. Thus, ended the legal proceedings challenging the aforesaid arbitral award. 3.4. Now comes the arena of the executing Court. An application comes to be filed by the Smart Assets/decree holder in I.A.No.5 of 2024 under Order 21 rule 54 of the CPC before the executing Court for attachment of 144 apartments in the subject project. The judgment debtors 1 to 5 filed their objections contending that the value of the attached property exceeds the decretal amount. On 12-11-2024 the executing Court passes an order allowing the said application by attaching 144 units, on the score that merely because the value of the property sought to be attached was more than the award, it does not in any way hold the Court from passing an order of attachment. Applications galore before the concerned Court. 3.5. An application in I.A.No.37 of 2025 was filed before the executing Court seeking modification of the order dated Printed from counselvise.com 22 12-11-2024, by contending that they have no objection to the attachment and consequent sale of 24 apartment units of 2 and 3 BHK out of the 144 apartments. The judgment debtors also contended that 120 apartments were subject matter of third-party rights and the same would result in multiplicity of proceedings. The remaining 24 apartments, as they were unencumbered they have no objection to attach the said apartments. On an application filed by the decree holders in I.A.No.69 of 2025 under Order 21 Rule 64 the executing Court issues a proclamation of sale and sale warrant by the impugned order. Writ Petition No.6807 of 2025 is filed challenging the order attaching 144 apartments in terms of the order of the concerned Court dated 12-11-2024. The second order that was passed on I.A.No.69 of 2025 issuing the proclamation of sale is challenged in Writ Petition No.6830 of 2025. 83 apartments were being put to public auction pursuant to orders of the executing Court. 3.6. Several buyers of the apartments who had filed applications before the concerned Court rushed to this Court challenging the said public auction. A coordinate Bench of this Court Printed from counselvise.com 23 on 02-04-2025 granted an interim order of stay in Writ Petition No.6830 of 2025 directing the respondent not to create third party rights and interest insofar as 59 flats as observed hereinabove. After the order of the coordinate Bench on 03-04-2025 a spot sale took place for 24 apartments and the Court sale took place later on 15-04-2025 for the said 24 apartments. It is at that stage, the matter is heard. 4.1. The learned senior counsel Sri S.S.Naganand appearing for the petitioners/Developer would vehemently contend that the sale proclamations and sale warrants issued are invalid as they suffer from arbitrariness and non-application of mind. The impugned order was passed despite the petitioners objecting sale of 120 flats, as they are already subject matter of third-party rights. The order not being restricted only to 24 flats is bad in law. The learned senior counsel submits that sale of properties under Order 21 Rule 64 of the CPC must be to the limited extent of satisfying the decretal sum. He would submit that it is the duty of the executing Court to decide whether it is necessary for the entire property to be attached and brought to sale. The concerned Court Printed from counselvise.com 24 did not enter into the said examination. Therefore, the executing Court has not examined the fair value of the property and is in violation of mandatory requirement of Order 21 Rule 64 of the CPC, which observes that such examination is necessary to satisfy the decree and no such sale can be allowed without examining the fair value of the property. 4.2. It is the submission of the learned senior counsel that the executing Court did not bear in mind that the attachment measures 2,25,995 sq.ft. for which the latest market value would amount to ₹91,07,06,632/-, while the decretal amount was less than ₹30/- crores. Therefore, the executing Court has attached properties for which valuation actually taken would be more than ₹200/- crores and the decretal amount including interest would be less than ₹45/- crores. The learned senior counsel has placed reliance upon several judgments of the Apex Court, all of which would bear consideration in the course of the order qua its relevance. 5. Per contra, the learned counsel representing the decree holders would vehemently contend that the bailiff report indicates Printed from counselvise.com 25 that valuations of both Smart Assets and the developer/judgment debtor are considered. Once the decretal amount is determined and the sale proclamation is issued, the judgment debtor cannot spring in the rigour of Order 21 Rule 64 of CPC. The Court, while stating the estimated value of the property, has to look into the entire material and then pass an order. Mere inadequacy of price, in the absence of a better purchaser, cannot be a ground to set aside the Court sale, as the Court sale is a forced sale and the value is always underestimated and nothing prevents the Judgment Debtor from bringing a better offer to the Authorities. The learned counsel appearing for the decree holder has also relied upon several judgments of the Apex Court and that of this Court, all of which would bear consideration qua its relevance in the course of the order. 6. The learned counsel Sri Aditya Narayan appearing for the buyers would submit that the buyers have projected that they have waited for 10 to 12 years for the project after having invested their amounts. The rights of the buyers should be taken note of is their submission relying upon several judgments of the Apex Court and Printed from counselvise.com 26 that of this Court on the issue of right of a buyer vis-à-vis the attachment order under Order 21 Rule 58 of the CPC. The said judgments would bear consideration qua its relevance in the course of the order. 7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 8. The afore-narrated facts, link in the chain of events, dates therein are all a matter of record. They would not require any reiteration. The issue now would be, whether the impugned order dated 28-02-2025 passed on I.A.No.69 of 2025 under Order 21 Rule 64 of the CPC issuing proclamation of sale for 83 apartments is valid in the eye of law. Since application is filed under Order 21 Rule 64 of the CPC, I deem it appropriate to notice the said provision. It reads as follows: “ORDER XXI Execution of Decrees and Orders Payment under Decree …. …. …. Printed from counselvise.com 27 64. 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.” Order 21 Rule 64 of the CPC empowers the Court executing a decree sale of attached property or only so much of it as is necessary to satisfy the decree amount ensuring that the sale is proportionate to the debt owed preventing sale of excess property. 9.1. Order 21 Rule 64 of the CPC has been interpreted by the Apex Court in TAKKASEELA PEDDA SUBBA REDDI v. PUJARI PADMAVATHAMMA1 as under: “…. …. …. 3. In this appeal the facts are more or less undisputed and the only serious point argued by the appellant is that the High Court was in error in setting aside the sale because even if the entire decretal amount was not mentioned in the sale proclamation, that was at best an irregularity which did not cause any prejudice to the judgment-debtor. It was also argued by learned Counsel for the appellant that the judgment-debtor did not raise any objection before the Executing Court against continuing the sale of other properties situated in Village Gudipadu. It was next submitted that the fifth respondent/decree-holder had obtained another decree in OS 19 of 1953 and the total amount under the two decrees fully 1 (1977) 3 SCC 337 Printed from counselvise.com 28 justified the selling of the properties in Village Gudipadu also, particularly when the decree-holder had taken an order from the Executing Court for rateable distribution of the sale proceeds. It is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable. It is not disputed that the warrant of sale was prepared long after the fifth respondent/decree-holder had obtained the second decree in OS 19 of 1953 and yet no attempt was made by the decree-holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit OS 15 of 1949 but also of the decree in the second suit in OS 19 of 1953. In these circumstances, therefore, under the provisions of Order 21 Rule 64 of the Code when the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties. It is manifest that where the amount specified in the proclamation of sale for the recovery of which the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from Order 21 Rule 64 of the Code which may be extracted thus: “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.” Under this provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words “necessary to satisfy the decree” clearly' indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price eaual to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. In the instant case, we have Printed from counselvise.com 29 already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs16,800 which was more than sufficient to satisfy the amount of Rs 16,715-8-0 mentioned in the sale proclamation. It is true that the decree-holder had obtained another decree in OS 19 of 1953, but there is nothing to show that the decree-holder had approached the Court for including the second decretal amount in the proclamation of sale. In these circumstances. therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the propeties situated in Village Gudipadu. The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non- compliance with the provisions of Order 21 Rule 64 of the Code was sufficient to vitiate the same so far as the properties situated in Village Gudipadu were concerned. For these reasons, the contentions raised by Counsel for the appellant must be overruled. 4. This, however, does not put an end to the issue, because the High Court, while setting aside the sale, has passed no order for adjusting the equities between the parties. According to the appellant he had taken possession of the properties purchased by him at the auction-sale and had made substantial improvements. If the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment-debtor, but he will be entitled to receive the value of improvements made by him during the time he was in possession of those properties in addition to the return of the sum of Rs 12,500. The Executing Court will have to hold an inquiry into the matter and determine the value of the improvements made by the appellant which will have to be paid to him. The appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties. If, however, the Executing Court finds that the auction-purchaser was not in possession of the properties and the properties continued to be in possession of the judgment- debtor, then the question of the value of improvements will naturally not arise. In that event the judgment-debtor will have to refund the amount of Rs 12,500 to the appellant with interest Printed from counselvise.com 30 at the rate of 12 per cent per annum from the date of sale up to the date of refund.” 9.2. The Apex Court, later, in AMBATI NARASAYYA v. M.SUBBA RAO2 has held as follows: “…. …. …. 7. It is of importance to note from this provision that in all execution proceedings, the court has to first 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 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, in our opinion, is not just a discretion, but an obligation imposed on the court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction. 8. In Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma [(1977) 3 SCC 337, 340] this Court after examining the scope of Rule 64 of Order XXI CPC has taken a similar view: (SCC p. 340, para 3) “Under this provision the executing court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words ‘necessary to satisfy the decree’ clearly indicate that no sale can be allowed beyond the 21989 Supp (2) SCC 693 Printed from counselvise.com 31 decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the court should stop at that stage.” 9. We may again hark back to the case of the appellant. The amount claimed in the execution petition was about Rs 2400. To realize that amount the land measuring 10 acres was sold for Rs 17,000. The appellate court has stated that the land being one, could not have been divided. Shri Ganesh, learned Counsel for the respondent sought to justify that view. But we find it difficult to appreciate that reason. It seems to be against commonsense. The land is not indivisible. Nor division is impracticable or undesirable. Out of 10 acres, the court could have conveniently demarcated a portion and sold it. Unfortunately, no such attempt was made and it was not even thought of. The court has blindfold sold the entire property. This is a usual feature which we have noticed in most of the execution cases. We must deprecate this tendency. There is a duty cast upon the court to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored. We cannot, therefore, sustain the impugned sale. It must be set aside being in contravention of the provisions of Rule 64 Order XXI CPC.” The Apex Court elucidates that it is the duty cast upon the Court under Order 21 Rule 64 to sell only such property or a portion thereof as may be necessary to satisfy the decree. The Apex Court holds that it is the mandate of the legislature and cannot be ignored. Printed from counselvise.com 32 9.3. The Apex Court, later, in S.S. DAYANANDA v. K.S. NAGESH RAO3 holds as follows: “…. …. …. 4. It is contended for the petitioner that the executing court had found that the adequacy of consideration is not a ground for setting aside the sale but the appellate court and the High Court have not gone into that aspect of the matter. The appellant having purchased the property valued in the proclamation at Rs 85,000 the sale for Rs 67,000 was adequate and, therefore, the sale could not be set aside. We find no force in the contention. It is seen that the High Court has noted that the procedural compliance of Order 21, Rule 64 CPC was not adhered to which is a mandatory requirement as held by this Court in DeshBandhu Gupta v. N.L. Anand & Rajinder Singh [(1994) 1 SCC 131]. Equally the sale consideration of the property was in excess of the execution. Under these circumstances, the High Court is justified in confirming the order of the appellate court setting aside the sale.” In this judgment the Apex Court holds that compliance with Order 21 Rule 64 is mandatory and the executing Court is required to consider whether the sale consideration is in excess of the execution. 3 (1997) 4 SCC 451 Printed from counselvise.com 33 9.4. The Apex Court, later, in S.MARIYAPPA v. SIDDAPPA4 by following its earlier judgment in the case of DESH BANDHU GUPTA v. N.L. ANAND (1994) 1 SCC 131, has held as follows: “…. …. …. 3. In the case of Desh Bandhu Gupta v. N.L. Anand [(1994) 1 SCC 131] it has been held by this Court as follows: (SCC pp. 146-47 & 150, paras 14 & 17) “14. Proviso to sub-rule (4) of Rule 17 of Order 21 provides the procedure to receive the application for execution of the decree. In the case of a decree for payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree. Rule 64 of Order 21 charges the executing court that it may order attaching of any property to the extent that ‘such portion thereof as may seem necessary to satisfy the decree would be sold’. It is also enjoined under sub-rule (2)(a) of Rule 66 of Order 21 that where a part of the property would be sufficient to satisfy the decree the same be sold by public auction. Form 27 of Appendix E of the Schedule also directs the court auctioneer to sell so much of the said property as shall realise the sum in the said decree and costs. The Code, therefore, has taken special care charging the duty on the executing court and it has a salutary duty and a legislative mandate to apply its mind before settling the terms of proclamation and satisfy that if part of such property as seems necessary to satisfy the decree should be sold if the sale proceeds or portion thereof is sufficient for payment to the decree-holder or the person entitled under the decree to receive the amount and so much of that property alone should be ordered to be sold in execution. In Ambati Narasayya v. M. Subba Rao [1989 Supp (2) SCC 693] this Court held that it is the duty cast upon the court under Order 21 Rule 64 to sell only such 4 (2005) 10 SCC 235 Printed from counselvise.com 34 property or a portion thereof as may be necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored. Therein for execution of a decree of a sum of Rs 2000 and costs, the appellant's 10 acres land was brought to sale which was purchased for a sum of Rs 17,000 subject to discharge of a prior mortgage of Rs 2000. This Court held that without the court's examining whether a portion of the property could be sold, the sale held was not in conformity with the requirement of Order 21 Rule 64 and it was held to be illegal and without jurisdiction. The sale was set aside and the court was directed to put the judgment-debtor in possession of the land and to refund the sale amount to the auction-purchaser. Further direction was given to execute the decree in accordance with law. In Mangal Prasad v. Krishna Kumar Maheshwari [1992 Supp (3) SCC 31] a shop was sold to realise a decree debt of about Rs 29,000 and the sale price at the auction was rupees one lakh and odd. This Court finding that it is excessive execution, set aside the sale and directed return of the sale amount to the auction-purchaser with interest @ 12%. In Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma [(1977) 3 SCC 337] to recover the decree debt in two decrees, the properties situated in two different villages were brought to sale. In the first instance the property in ‘D’ village fetched a sum of Rs 16,880, which was sufficient to satisfy the decretal amount. The property in ‘G’ village was also sold which fetched a sum of Rs 12,000. This Court set aside the sale of ‘G’ village. Admittedly the site in sale is to the extent of 550 sq yards, situated in a commercial area around which the petroleum installations are established. Though, as contended by Shri Madhava Reddy, that there may be building regulation for division of the property into portions, but the court made no attempt to sell a portion of the property, maybe 100 yards or 150 yards out of it, or whether undivided portion thereof would have satisfied the decree debt. It could be legitimately concluded that the court did not apply its mind at all to this aspect as well. *** Printed from counselvise.com 35 17. Under Section 47 all questions relating to execution, discharge or satisfaction of the decree should be determined by the executing court alone. The pre- sale illegalities committed in the execution are amenable to the remedy under Section 47. Post-sale illegalities or irregularities causing substantial injury to the judgment- debtor are covered under Order 21 Rule 90. Sub-rule (1) thereof covers the field of material irregularities or fraud in publicity or conducting the sale. Sub-rule (2) enjoins proof thereof and the court should find that by reason thereof the applicant sustained substantial injury. The total absence of drawing up of the proclamation of sale and settlement of its term by judicial application of mind renders the sale a nullity being void. It is covered by Section 47. The non-application of mind whether sale of a part of the property would satisfy the decree debt is a material irregularity doing substantial injury to the appellant attracting Order 21 Rule 90. In either case the sale is liable to be set aside. It is true that there is distinction between mere irregularity and material irregularities and the sale is not liable to be set aside on proof of mere irregularity. It must be material irregularity and the court must be satisfied that on account thereof substantial injury was sustained by the appellant. The sale of 550 sq yards for recovery of a paltry sum of Rs 7780.33, without selling a portion thereof, caused substantial injury to the appellant.” 9.5. Later, the Apex Court in BALAKRISHNAN v. MALAIYANDI KONAR5 has held as follows: “…. …. …. 8. Order 21 Rule 64 reads as follows: “64. 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 5 (2006) 3 SCC 49 Printed from counselvise.com 36 such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.” 9. The provision contains some significant words. They are “necessary to satisfy the decree”. Use of the said expression clearly indicates the legislative intent that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. (See Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma [(1977) 3 SCC 337: AIR 1977 SC 1789].) In all execution proceedings, the 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. (See Ambati Narasayya v. M. Subba Rao [1989 Supp (2) SCC 693].) The duty cast upon the court to sell only such property or portion thereof as is necessary to satisfy the decree is a mandate of the legislature which cannot be ignored. Similar view has been expressed in S. Mariyappa v. Siddappa [(2005) 10 SCC 235]. 10. In S.S. Dayananda v. K.S. Nagesh Rao [(1997) 4 SCC 451] it was held that the procedural compliance with Order 21 Rule 64 of the Code is a mandatory requirement. This was also the view expressed in Desh Bandhu Gupta v. N.L. Anand [(1994) 1 SCC 131].” Apex Court holds that in Order 21 Rule 64 the words found are “necessary to satisfy the decree”. The intention of the legislature is Printed from counselvise.com 37 clear that it intends that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. The Apex Court holds that it is not a discretion of the concerned Court, but an obligation imposed on the Court by the legislature. If a proclamation is issued without examining this aspect, it would not be in conformity with the mandatory requirement and resultantly it would be an order which is illegal. 9.6. The Apex Court again in SAI ENTERPRISES v. BHIMREDDY LAXMAIAH6 has held as follows: “…. …. …. 7. However, the grievance of the appellant so far as non-compliance with the requirements of Order 21 Rule 64 of the Code is concerned is on sound footing. 8. Order 21 Rule 64 reads as follows: “64. 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.” 9. The provision contains some significant words. They are “necessary to satisfy the decree”. Use of the 6 (2007) 13 SCC 576 Printed from counselvise.com 38 said expression clearly indicates the legislative intent that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. (See Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma [(1977) 3 SCC 337 : AIR 1977 SC 1789] .) In all execution proceedings, 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. (See Ambati Narasayya v. M. Subba Rao [1989 Supp (2) SCC 693] .) The duty cast upon the court to sell only such portion or portion thereof as is necessary to satisfy the decree is a mandate of the legislature which cannot be ignored. Similar view has been expressed in S. Mariyappa v. Siddappa [(2005) 10 SCC 253] . The position was also highlighted in Balakrishnan v. Malaiyandi Konar [(2006) 3 SCC 49] . 10. In the aforesaid background normally we would have remitted the matter for consideration of the aspects covered by Order 21 Rule 64 of the Code. But considering the peculiar facts of the case and the long passage of time, we direct that Respondent 1 shall pay a sum of rupees one lakh to the appellant within a period of three months. In case of non- payment of the aforesaid amount, the appellant shall be free to pay a sum of Rs 3,12,000 with 9% interest from the date of auction, to Respondent 1 and get the property conveyed in his favour under the directions of the Court.” Printed from counselvise.com 39 The words ‘necessary to satisfy the decretal amount’ found in Order 21 Ruel 64 is the indication of the legislative intent that no sale can be allowed beyond the decretal amount. The Court has a duty 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. This is the mandatory requirement and without the proclamation being in conformity with this mandatory requirement, the proclamation would be illegal. 9.7. In BHIKCHAND v. SHAMABAI DHANRAJ GUGALE7 the Apex Court holds as follows: “…. …. …. 22. It is also important to bear in mind the provisions contained in Rule 54(1) Order XXI read with Rule 66 of Order XXI CPC wherein it is provided that either whole of the attached property or such portion thereof as may seem necessary to satisfy the decree shall be sold in auction. If there is no valuation of the property in the attachment Panchanama and there being no separate provision for valuation of the property put to auction, it is to be understood that the valuation of the property mentioned in attachment Panchanama prepared under Rule 54 can always provide the estimated value of the property otherwise the provisions enabling the court to auction only a part of the property which would be sufficient to satisfy the decree would be unworkable or redundant. In the case in hand, the assessed value of all the attached properties is Rs. 1,05,700/- whereas the original decretal sum was Rs. 27,694/- 7 2024 SCC OnLine SC 929 Printed from counselvise.com 40 which is about 26.2% of the total value of the property. Therefore, when only one of the attached properties was sufficient to satisfy the decree there was no requirement for effecting the sale of the entire attached properties. 23. In the matter of Balakrishnan v. Malaiyandi Konar this Court observed thus: “9. The provision contains some significant words. They are “necessary to satisfy the decree”. Use of the said expression clearly indicates the legislative intent that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. (See Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma [(1977) 3 SCC 337 : AIR 1977 SC 1789].) In all execution proceedings, the 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. (See Ambati Narasayya v. M. SubbaRao [1989 Supp (2) SCC 693].) The duty cast upon the court to sell only such property or portion thereof as is necessary to satisfy the decree is a mandate of the legislature which cannot be ignored. Similar view has been expressed in S. Mariyappa v. Siddappa [(2005) 10 SCC 235]. 10. In S.S. Dayananda v. K.S. Nagesh Rao [(1997) 4 SCC 451] it was held that the procedural compliance with Order 21 Rule 64 of the Code is a mandatory requirement. This was Printed from counselvise.com 41 also the view expressed in DeshBandhu Gupta v. N.L. Anand [(1994) 1 SCC 131].” 24. In Ambati Narasayya v. M. Subba Rao12 this Court has held that in auction sale this is obligatory on Court that only such portion of property as would satisfy decree is sold and not the entire property. This court observed thus in paras 6, 7 & 8: “6. The principal question that has been highlighted before us relates to the legality of the sale of 10 acres of land without considering whether a portion of the land could have been sold to satisfy the decree. It is said that the total sum claimed in the execution was Rs. 2395.50. The relevant provision which has a bearing on the question is Rule 64 Order XXI of the Code of Civil Procedure and it reads as follows:— “Order XXI Rule 64 : Power to order property attached to be sold and proceeds to be paid to persons 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.” 7. It is of importance to note from this provision that in all execution proceedings, the court has to first 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 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, in our opinion, is not just a discretion, but an obligation imposed on the court. Care must be taken to put only such Printed from counselvise.com 42 portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction. 8. In Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma [(1977) 3 SCC 337, 340] this Court after examining the scope of Rule 64 of Order XXI CPC has taken a similar view : (SCC p. 340, para 3) “Under this provision the executing court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words ‘necessary to satisfy the decree’ clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held, and the court should stop at that stage.” 25. It is, thus, settled principle of law that court's power to auction any property or part thereof is not just a discretion but an obligation imposed on the Court and the sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. In the case at hand, the Executing Court did not discharge its duty to ascertain whether the sale of a part of the attached property would be sufficient to satisfy the decree. When the valuation of three attached properties is mentioned in the attachment Panchanama, it was the duty of the Court to have satisfied itself on this aspect and having failed to do so the Court has caused great injustice to the judgment debtor by auctioning his entire attached properties causing huge loss to the judgment debtor and undue benefit to the auction purchaser. The fact that the properties were sold for a sum of Rs. 34,000/- would further demonstrate that the decree holder who himself is the auction purchaser has Printed from counselvise.com 43 calculatedly offered a bid at Rs. 34,000/- despite being aware that the value of the attached properties is Rs. 1,05,700/-.” The Apex Court summarises the law on Order 21 Rule 64 and holds that Court’s power to auction any property or part thereof is not just a discretion but an obligation imposed on the Court and the sale held without examining this aspect would not be in conformity with the mandatory requirement and would be illegal and without jurisdiction. The Apex Court sets aside the attachment proceedings on the ground of non-compliance with Order 21 Rule 64. 10. On the bedrock of the principles laid down by the Apex Court the order impugned i.e., the order of proclamation of sale and sale warrant is required to be noticed. The order of the concerned Court reads as follows: “Business : IA No.69 filed by DHR u/Order 21 Rule 64 r/w Sec.151 of CPC is hereby allowed. Consequently issue sale proclamation and sale warrant in respect of A & B schedule property referred in memo dated 27.02.2025 sale at spot on 3-04-2025 and sale at Court premises by 15-04-2025 in respect of schedule property. If PF and charges paid. Next purpose Hearing Next hearing date: 15-04-2025.” Printed from counselvise.com 44 Further, it is necessary to notice the order passed on two applications – one filed under Order 21 Rule 54 of the CPC directing attachment of the property. The reasons for the order are as follows: “…. …. …. REASONS 7. Point No.1: It is the case of the DHR that since from the date of award passed by the Arbitration Tribunal the Judgment debtor is trying to avoid to make payment. He has filed proceedings under section 34 of Arbitration Act, same was came to be dismissed. Aggrieved by the said order he has again preferred Com.A.S.64/2019 wherein the court upheld the arbitration award passed by the Arbitrator. Thereafter he has preferred Com.A.P.305/2022 before the Hon'ble High Court of Karnataka under section 37 of Arbitration Act. The Hon'ble High Court was pleased to dismiss the said prayers. Aggrieved by the said order the JDR herein preferred SLP before the Hon'ble Supreme Court. The Hon'ble Supreme Court was also pleased to dismiss the SLP. Even then the JDR has not come forward to pay the award amount and he is evading payment of the award amount. The decree holder has also preferred suit in 0.S.No.25242/2024 before the City Civil Court wherein the court was granted the exparte ad interim injunction order restraining the judgment debtor from alienating the suit schedule properties. Now the applicant has sought for attachment of 144 flats referred under application. If the application is allowed the 144 flats referred under application are attached then only the decree holder is able to recover the amount. Otherwise the very purpose of passing the award and filing execution petition will be defeated. These facts have been denied by the opponent JDR in the objection statement contended that DHR has suppressed the material fact with a malafide intention he has preferred this application. He has already filed similar nature of application under I.A.No.3 and this court was granted the relief sought under it. The DHR has not taken steps to execute the award against those properties. Without taking steps against the said Printed from counselvise.com 45 properties now he has filed present application concealing the fact of filing the suit in respect of the properties referred under the application. Until and unless the DHR is able to execute the petition against the properties already attached he cannot proceed with the properties referred under application. The application is devoid from merit, prayed for dismissal of the application. 8. Filing of suit seeking for prohibitory relief against the property cannot be considered as resjudicata. It is also argued by the learned counsel for DHR that mere decree holder has obtained order of attachment of some of the properties of JDR does not bars him to proceed with other properties. The DHR is entitled to seek attachment of movable and immovable properties of JDR until and unless the decree/award is fully satisfied. In support of his arguments as already stated above he has relied upon the decisions of Hon'ble Bombay High Court as well as judgment of Hon'ble Apex Court of India. As per the principles laid down in the above referred cases one point is clear that if DHR has obtained attachment warrant of immovable property belonging to JDR itself does not bar him to proceed against the other properties of JDR. It is also brought to the notice of the court in the course of arguments that the attachment warrant issued against immovables as per order under I.A.No.3 of this court has already been mortgaged in favour of bank until and unless the JDR discharge the liability the property cannot be sold to recover the award amount. Since the property sought under applications are free from encumbrances, therefore they can be attached and amount can be recovered. The learned counsel for JDR has not denied the contention of the DHR that the properties which have already been attached in this case under I.A.No.3 are already mortgaged in favour of the bank. Such being the facts of the case the relief sought by the DHR for attachment of property referred under application seems to be reasonable. Another contention set up by JDR is the property sought for attachment under application values more than the award amount. Hence DHR cannot proceed against these properties. If really the property / flats sought for attachment under these applications values more than the ward amount payable to the DHR the JDR is at liberty to pay the award amount and get release his flats. Merely because the value of the property sought for attachment is more the award amount attachment cannot be made, Printed from counselvise.com 46 contention does not holds water. As per the principles laid down in the above referred cases as well as facts and circumstances of the present case that the award is passed in the year 2018 till date the JDR has not come forward to pay the award amount. Under such circumstances with no alternative the DHR has sought for attachment of 144 flats referred under application for attachment, if the attachment warrant against these properties are not issued mean time the JDR may sell them and get the amount. Under such circumstances DHR has no means to recover from the JDR, hence the prayer sought in the application deserves to be considered. Otherwise DHR will be put to irreparable loss and untold hardship, arguments holds good that taking into consideration all these facts and circumstances in my view the applicant made out good grounds as sought in the application, has proved point No.1. Accordingly I answer it in the Affirmative. 9. Point No.2: For the various reasons discussed in the above point and findings given by me on it, I proceed to pass the following: ORDER I.A.No.5 filed by DHR under Order 21 Rule 54 of CPC r/w section 151 CPC is allowed. Issue attachment warrant of immovable properties of 144 flats referred under application if PF and charges paid. Returnable by 30/11/2024.” After the order of attachment two memos are filed by the decree holders and those two memos are answered by the impugned order as afore-quoted. Printed from counselvise.com 47 11. If the purport of the provision under Order 21 Rule 64 and its interpretation by the Apex Court is noticed, the sale of property that directed spot sale of 83 flats on 03-04-2025 and consequent court sale on 15-04-2025 would run foul of the very provision. The coordinate Bench of this Court had permitted sale of only 24 flats. The very next day the preparation for sale proclamation is made and spot auction is held without adequate notice to any person. Notice affixed at the spot was that sale was being conducted for 83 apartments instead of 24 and during this spot sale out of 24 units only 14 units received the bid. On 29-04-2025 sale proclamation is again issued for the unsold 10 flats for spot auction on 10-06-2025 and Court auction on 30-06-2025. The auction sale was said to be postponed for several other reasons when the proceedings were being heard before this Court. The concerned Court does not even apply its mind to the rigour of Order 21 Rule 64 CPC. 12. Contentions galore before this Court that decree holders are waiting for the decree to be executed and this Court should not interfere. This Court would not have interfered if the Court had acted in an appropriate manner i.e., in strict consonance with Order Printed from counselvise.com 48 21 Rule 64 CPC. There is a serious dispute with regard to the present market value of the property and admittedly amount included the interest. According to the learned senior counsel the decretal amount along with interest would not cross ₹43/- crores. But, 83 properties that are now subject matter of proclamation apart from they being contrary to the interim order are to be valued at ₹200/- crores. Therefore, the concerned Court ought to have applied its mind to the rigour of Order 21 Rule 64 CPC and then passed the order impugned. On this sole score the attachment and the proclamation that is issued way beyond the decretal amount or without fulfilling the obligation of the statute cannot be sustained in law. In that light the orders of attachment to the orders of Court sale pursuant to the attachment are rendered unsustainable. 13. The remaining writ petitions are the ones filed by the buyers. The issue is whether the buyers are to be heard or can be permitted to file their objections to the attachment and sale proceedings before the executing Court. Before embarking upon this aspect, the law in this regard is required to be noticed. Order 21 Rule 58 and Rules 97 to 104 of Order 21 mandate that all Printed from counselvise.com 49 questions raised by the objectors have to be comprehensively considered on their merit. The objections under Order 21 should be meaningfully heard, so as to avoid possibility of miscarriage of justice. The Apex Court in MAYA DEVI v. LALTA PRASAD8 has held as follows: “…. …. …. 42. I am fully mindful of the fact that the appellant has not taken any steps for setting aside the ex parte decree against late Shri Prem Chand Verma. This is only to be expected since the appellant objector has no reason to evince or harbour any interest in the inter se dispute between the decree-holder and the judgment-debtor. Indeed, if the appellant had made any endeavour to assail or nullify the decree, it would be fair to conclude that she had been put up by the judgment-debtor in an endeavour to defeat the decree. In these circumstances, my in-depth analysis of the law pertaining to decreeing what is essentially a penalty clause may, on a perfunctory or superficial reading, be viewed as non-essential to the context. This, however, is not so. On a conjoint reading of Order 21 Rule 58 CPC and the fasciculus of Order 21 comprising Rules 97 to 104, it becomes clear that all questions raised by the objector have to be comprehensively considered on their merits. In the case in hand, the decree from which the execution proceedings emanate is not one for delivery of possession, but is a simple money decree. Order 21 proscribes the filing of a separate suit and prescribes that all relevant questions shall be determined by the court. Objections under Order 21 should be meaningfully heard so as to avoid the possibility of any miscarriage of justice. It is significant in this regard that Rule 103 ordains that where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to 8 (2015) 5 SCC 588 Printed from counselvise.com 50 the same conditions as to an appeal or otherwise, as if it were a decree.” The Apex Court later interpreting Order 21 Rule 58 which deals with attachment of property of the judgment debtor, holds that persons interested in the property can approach the executing Court and the executing Court is entitled to look into the said claim, right and interest in the property and not direct a separate suit. The Apex Court in DANESH SINGH v. HAR PYARI9 has held as follows: “…. …. …. ii. Questions on whether the judgment-debtor had any “saleable interest” over the attached/sold property cannot be brought under the ambit of Rule 90 106. However, the scope of Rule 90 as elaborated in the aforesaid paragraphs must, by no means, be read to mean that a grievance that the judgment-debtor did not have any title to the attached property, can be raised by an applicant under Rule 90. This would squarely fall within the scope of Rule 58 wherein one is entitled to make a claim or raise objections “on the ground that such property was not liable to attachment”. The same would be beyond the purview of Rule 90 also for the reason that under this rule the executing court, unlike Rule 58, does not have the expanded scope to decide all questions relating to the right, title, or interest arising between the parties to the proceeding. … … … 121. The proviso to sub-rule (1) of Rule 92 takes care of a situation where the order of sale has been 9 2025 SCC OnLine SC 2805 Printed from counselvise.com 51 passed while an application under Rule 58 raising a claim or an objection as regards the attachment of the property sold, is still pending adjudication. While the process of sale by itself does not come to a halt solely owing to an application being filed under Rule 58, the executing court stands barred from confirming the sale until such an application under Rule 58 is finally disposed. This is also due to the fact that upon an order of confirmation of sale being passed, the same becomes absolute and immune from being assailed under any rule preceding rule 92. Therefore, it becomes the duty of the executing court to ensure that no application remains pending or undecided when it is making its decision under Rule 92(1). … …. …. 154. To understand the import of the term “third party” let us look at a pertinent observation made by the Law Commission in its 54th Report (Vol 1, pg. 172) which reads that - “Attachment may be followed by an application for its removal by a third party, and the present rules require a summary inquiry and order, which may be followed by a suit to establish the right denied in the summary proceedings”. This referred to the scheme of Rule 58 as it existed prior to the 1976 Amendment. However, the reason behind our drawing attention to this observation is the acknowledgment that a third party asserting their title would be able to raise the grievance that his property has been wrongly attached in the execution proceedings under Rule 58. The third party referred herein, in the context of Rule 58, has some significance as regards how the same term must be interpreted under Rule 92(4) as well. … … … 158. The interplay of Rules 92(1) and 92(2) respectively, indicates that such a suit under Rule 92(4) can arise only after an order confirming the sale under Rule 92(1) has been passed. We say so because a third party would otherwise be able to challenge the title of the judgment-debtor under Rule 58 instead, by raising a claim or an objection as regards the attachment of the property in the execution proceedings. In other words, the option to assert his title over the attached property is available to the third party under Rule 58 until the sale comes to be confirmed. If Printed from counselvise.com 52 knowledge that his property has been attached and sold in an unrelated execution proceeding, has been acquired by a third party after the sale has been confirmed under Rule 92(1), then the only remedy available to him would be to file a suit challenging the judgment-debtor's title to the property, alleging the sale to be a nullity. Here, although he is challenging the title of the judgment- debtor to the property in question, yet his suit would be instituted against the auction-purchaser because the sale has become absolute in favour of the auction purchaser. Conversely, if the sale is set-aside under Rule 92(2), there would be no reason for a third party to institute a separate suit to assert his title, since the remedy to file an objection under Rule 58 would be re-opened to him. … … … 161. What is relevant from the aforesaid, for the purposes of our discussion is that, Rule 58 uses the words “where any claim is preferred to, or any objection is made to the attachment” along with the words “on the ground that such property is not liable to such attachment” respectively. This would indicate that a third party, i.e., a party who was alien to the proceedings in the original suit in which the decree was passed, could also prefer a claim or file an objection under Rule 58 against the attachment of the property by stating that the judgment-debtor does not have title to such property. By virtue of Rule 58(2) (in its amended form), all questions including those relating to the right, title or interest in the property attached could be looked into by the executing court. A separate suit in this regard, at this stage of the execution proceeding, is barred and this is indicated from the words “and not by a separate suit” occurring in Rule 58(2). 162. The proviso to Rule 58(1) states that no claim or objection under Rule 58 shall be entertained by the executing court under two circumstances - (a) where the property attached has already been sold before the claim is made or the objection is preferred under Rule 58, or (b) where the executing court considers that the claim or objection preferred was designedly or unnecessarily Printed from counselvise.com 53 delayed. The use of the word “shall” in the proviso indicates that at least insofar as (a) is concerned i.e., when the attached property has already been sold, the executing court has to mandatorily dismiss the application made under Section 58. When the executing court disallows an application under Rule 58 by invoking clause (a) of the proviso to Rule 58(1), Rule 58(5) comes into the picture. 163. Rule 58(5) states that when a claim or an objection is not entertained owing to the mandatory nature of clause (a) of the proviso to Rule 58(1), then such a party against whom this Order under Rule 58 was made, may institute a separate suit to establish the right which he claims to the property that is the subject matter of attachment in the execution proceedings. However, during the period in which such a separate suit, if any, is being decided by the court of competent jurisdiction, the order refusing to entertain the claim or objection made under Rule 58 would be conclusive insofar as the progress of the execution proceedings are concerned. 164. What is evident from the aforesaid reading is that the executing cannot entertain an application under Rule 58 once the stage of sale has already passed. In other words, it would only be competent to decide an application under Rule 58, at stages prior to the occurrence of the sale. The moment the property comes to be sold, the recourse available to any third party would be to institute a separate suit, as so specifically elaborated under Rule 58(5). 165. Having said so, the words “the property attached has already been sold” under clause (a) of the proviso to Rule 58 could give rise to some interpretational ambiguity. In other words, it is unclear as to whether the legislature intended this to refer to a stage when the order of sale has been passed or whether it refers to a stage when the order of confirmation of sale has been passed under Rule 92(1). There is, otherwise, a very stark distinction between these two orders - the former refers to the order which creates an opportunity to resort to Rules 89, 90 and 91 respectively to set-aside the sale, and the latter refers to the order which arises after the applications Printed from counselvise.com 54 made under Rules 89, 90 and 91 respectively have been decided or when the time for making those applications has lapsed. Therefore, there is a significant gap between these two orders, which is, at the least a minimum of 60 days as prescribed under Article 127 of the Limitation Act, 1963. 166. Let us understand why a conscientious and careful interpretation of the words “the property attached has already been sold” is of utmost importance here. One possible way of interpreting it would be to say that it refers to the order of sale which is passed once the property has been auctioned and the auction-purchaser has been chosen. To be more specific, it is that order after the passing of which the recourse to Rules 89, 90 and 91 respectively would become available. However, with such an interpretation, the consequence would be that, if an application under Rule 58 is preferred even one day after the order of sale has been made, then such an application would come to be rejected in accordance with clause (a) of the proviso to Rule 58(1) and Rule 58(5) would be set in motion, whereby the said applicant could institute a separate suit. To put it simply, this would mean that the option to institute a suit for a third party arises from the moment the order of sale has been passed and he needn't wait until the sale has been confirmed. Therefore, in that period between the order of sale and the order confirming sale, which can be 60 days or more (as we had stated previously), any third party would be able to file a separate suit for a claim or objection which he could otherwise agitate under Rule 58. …. …. …. G. CONCLUSION 256. A conspectus of the aforesaid detailed discussion on the position of law as regards the doctrine of lis pendens along with Rules 58, 89 to 92, 99 to 104 of Order XXI CPC respectively and Section 47 CPC is as follows: …. …. …. Printed from counselvise.com 55 (v.) The absence of a saleable interest on the part of the judgment-debtor to the suit property cannot be brought in as a ground under Rule 90 of Order XXI CPC. Such a ground would squarely fall within the ambit of Rule 58 of Order XXI CPC, if the sale is yet to be confirmed. …. …. …. (viii.) The term “third party” under Rule 92(4) would mean a party other than the judgment-debtor, decree-holder or the auction-purchaser and would refer to a party who has not had his right, title or interest vis-à-vis the property in question adjudicated under Rule 58, Rule 97 or Rule 99 of Order XXI CPC respectively. To put it very simply, the term “third party” under Rule 92(4) would refer to a party who is extraneous to the original suit proceedings and the proceedings under Order XXI CPC, and who either has not had his right, title or interest adjudicated or having the opportunity to have his right, title or interest adjudicated, has not availed such a remedy within the required time. Such a “third party” would also be someone who falls outside the scope of Section 47 CPC.” (Emphasis supplied at each instance) The Apex Court holds that the object of Order 21 Rule 58 is that third party asserting his title should be able to raise a grievance that his property has been wrongly attached in the execution proceedings. Admittedly, 120 apartments that have now become subject matter of attachment, third party rights have already been Printed from counselvise.com 56 created by the properties being the subject matter of agreement to sell or otherwise of the buyers who have filed Writ Petition Nos.9793 of 2025 and 9805 of 2025. In that light and in the light of the judgments of the Apex Court noted hereinabove, the Court had the obligation to consider the claim of the buyers qua the attachment of their properties also. The order that denied them right of hearing by the impugned order is contrary to law. In that light, Writ Petition No.6830 of 2025 filed by the judgment debtors deserves to succeed. So does Writ Petitions filed by the buyers in Writ Petition Nos.9793 of 2025 and 9805 of 2025. 14. What remains is Writ Petition No.6807 of 2025 which was filed calling in question the order dated 12-11-2024 challenging the attachment order. Since this Court had permitted 24 units to be sold, the attachment order become unsustainable for the present insofar as remaining 120 units are concerned. Therefore, the said writ petition is to be allowed in part, except 24 units directed by the coordinate Bench, as the attachment order runs contrary to law. To that extent the said petition succeeds. Printed from counselvise.com 57 15. For the aforesaid reasons, the following: O R D E R (i) Writ Petition No.6830 of 2025 is allowed in part. The order dated 28-02-2025 passed on I.A.No.69 of 2025 is quashed. (ii) Writ Petition No.6807 of 2025 is allowed in part, except 24 units permitted by the interim order of this Court. The remaining 120 units attached by the order dated 12-11-2024 is rendered unsustainable. (iii) Writ Petition Nos.9793 of 2025 and 9805 of 2025 filed by the buyers are also allowed. The buyers are entitled to file their objections and the concerned Court shall consider the same in accordance with law. (iv) Matters are remitted back to the hands of the concerned Court to pass necessary orders answering the applications filed under Order 21 Rule 54 in terms of clause (ii) of this order, Order 21 Rule 58 and Order 21 Rule 64 of the CPC in accordance with law, bearing in mind the observations made in the course of the order. Consequently, pending applications if any, also stand disposed. SD/- (M.NAGAPRASANNA) JUDGE bkp CT:MJ Printed from counselvise.com "