Decree Holder With Charged Decree Enjoys Priority Over Unsecured Decree Holders U/S 73 CPC: Kerala High Court

A Division Bench comprising Justice Sathish Ninan and Justice P. Krishna Kumar was delivering the judgment in an appeal challenging the dismissal of an application to set aside an execution sale conducted by the Sub Court, Thodupuzha.

The first respondent had obtained a decree for ₹20,29,054 with interest, directing recovery by charging the scheduled property belonging to the judgment debtors. In execution proceedings, the property measuring 32.27 cents was auctioned on 6 November 2019 for ₹25,01,000 with the decree holder himself purchasing it with court permission.

The appellant, another decree holder against the same judgment debtors, had earlier secured attachment of the same property in his own execution petition. He filed an application under Order XXI Rule 90 CPC to set aside the sale, alleging fraud and collusion between the decree holder and judgment debtors, suppression of the earlier attachment, undervaluation of the property and entitlement to rateable distribution of the sale proceeds under Section 73 CPC

The execution court rejected the application, finding no material irregularity or fraud in the conduct of the sale.

The High Court thus examined whether the sale is liable to be set aside and whether the appellant has any right to obtain a rateable distribution of the assets held by the execution court.

The Bench reiterated that an application under Order XXI Rule 90 to set aside an execution sale requires proof of material irregularity or fraud in publishing or conducting the sale, and substantial injury caused by such irregularity.

The Court found no evidence supporting the allegations of fraud or undervaluation. It also held that non-mentioning of a prior attachment in the sale proclamation does not constitute material irregularity, since an attachment does not create a proprietary interest or encumbrance in the property.

The Court noted that an attachment merely prevents private alienation by the judgment debtor and therefore need not be treated as an encumbrance under Order XXI Rule 66(2).

To answer the question of rateable distribution of assets, the Court examined the scope of Section 73 of the Code. As per the Section , when assets are held by a court, and more than one person has made applications to the court for execution of decrees for payment of money passed against the same judgment debtor, such assets shall be rateably distributed among all such persons, provided that applications were made before the receipt of the assets.

The Court emphasized that the provision does not override the priority of secured claims, such as those arising from a mortgage or charge.

“The basic principle underlying Section 73 is equality among unsecured decree holders. Nevertheless, the provision does not override the priority of secured claims arising under a mortgage or charge.” the Court said.

The Bench held that Section 73(1)(c) gives priority to the decree ordering sale for discharge of an encumbrance. Consequently, the sale proceeds must first satisfy the amount due under that decree before any distribution to other decree holders. Reliance was placed on M L Abdul Jabbar Sahib v M V Venkata Sastri and Sons [AIR 1969 SC 1147].

The Court further noted that Order XXXIV Rule 15(2), introduced by the 1976 amendment clarifies that where a decree charges money on immovable property, the amount may be realized by sale of that property in execution of the same decree, even if the decree does not expressly order sale.

“By virtue of this amendment, even if the decree orders payment of money without further directing sale of the immovable property, but charges the decree debt on an immovable property, the amount due under the decree can be realised by sale of that property in execution of that decree itself. Therefore, the question whether a charge holder under a decree for refund of an amount paid towards sale consideration is required to institute a fresh suit for sale of the property does not arise after the said amendment.” Court noted.

Thus, a charged decree is effectively treated on par with a decree directing sale of the property for purposes of execution and priority.

The Court further observed that for claiming rateable distribution, the execution petition of the claimant must be pending when the court receives the assets. In this case, the appellant's execution petition had been dismissed for default before the auction proceeds were received, thereby disentitling him from claiming rateable distribution.

The Court thus found no material irregularity in the auction sale and dismissed the appeal and upheld the confirmation of the sale.

Case Title: Koshy Abraham v Shaji and Ors.

Case No: FAO 51/ 2020

Citation: 2026 LiveLaw (Ker) 146

Counsel for Appellant: Narendra Kumar

Counsel for Respondent: P B Krishnan (Sr.), P B Subramanyan, Sabu George, B Anusree, Manu Vyasan Peter, Meera P