by any person entitled to share in a rateable distribution of assets

O. 21, R. 90(4) – Scope of – Even third party can challenge the judgment debtors title as per O. 21, R. 90 In a matter as in the present, where an immovable property has been sold in execution of a decree passed by the Civil Court, it would be most inappropriate for the Court in exercise of its writ jurisdiction under Article 226 of the Constitution to interfere when sufficient remedies are provided under O. 21, R. 90 of the Code of Civil Procedure, 1908. Order 21, Rule 90(1) stipulates that where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or ―any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale‖, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.  Sub-rule (2) of O. 21, R. 90 stipulates that no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury. Order XXI, Rule 92(4) stipulates that where a third party challenges the judgment-debtor‘s title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.  Sufficient remedies are available under the Code of Civil Procedure, 1908 for applying to set aside an auction sale, which has been conducted in execution of a decree including at the behest of a third party which claims an interest or share in the property which is affected by the sale. In this view of the matter, no recourse can be had for exercise of writ jurisdiction under Article 226 of the Constitution.

Case Law;
Hazrat Ali v. State of U.P.;

Citation:
2014 (123) RD 818