Setting aside of sale under Order XXI Rule 90 CPC, mere irregularity is not sufficient but there must be material irregularity or fraud in the process and in addition, there must be substantial injury to the judgment debtor

Hon’ble Supreme Court in Zakaria Ghani and 4 others vs. Muhammad Ikhlaq Memon and 8 others (PLD 2016 Supreme Court 229) held that for setting aside of sale under Order XXI Rule 90 CPC, mere irregularity is not sufficient but there must be material irregularity or fraud in the process and in addition, there must be substantial injury to the judgment debtor. The relevant observation of apex Court is reproduced hereunder:- 

“A mere allegation is not sufficient. It has to be established that not merely an irregularity but a material irregularity has taken place, or, in the alternative, that fraud has been perpetrated in the process of carrying out the sale. Then is super added the requirement that even if these conditions are complied with the judgment debtor must satisfy the Court that he has sustained a substantial injury by reason thereof. Finally, in order to discourage frivolous applications intended to delay the execution of the decree it is mandatory on the judgment debtor to deposit 20% of the sale amount or furnish such security as the Court may direct. It is also material to note that once again a time frame of 30 days has been specified under Article 166 of the Limitation Act in this behalf. Failing compliance with the provisions of Order XXI Rule 90 once again the inevitable consequence is that the judgment debtor is precluded from making any such allegation in order to challenge the validity of the sale at a subsequent stage”. 

 Part of Judgment 

 IN THE LAHORE HIGH COURT MULTAN BENCH, MULTAN JUDICIAL DEPARTMENT.

Civil Revision-Civil Revision (Against Interim Order)
375-15

2017 LHC 1880