Supreme Court of India· 14 August 2026

Can a mixed question of law and fact be raised for the first time in a writ petition if no factual foundation was laid before the original authority?

Sheela Gehlot v. Mohini Hardayal Singh & Ors

2026 INSC 863 · CIVIL APPEAL NO. 182 OF 2016
Coram: Alok Aradhe; Pamidighantam Sri Narasimha

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Answer

No — a pure question of law can be raised at any stage of a proceeding, but a mixed question of law and fact that requires investigation and for which no factual foundation was laid cannot be allowed to be agitated in a writ petition; here, respondent no. 1 never pleaded or proved the exemption before the Recovery Officer.

Headnote

Recovery of Debts and Bankruptcy Act, 1993 — Section 31 — Section 29 — Code of Civil Procedure, 1908 — Order XXI Rule 22 — Section 60(1)(ccc) — Income Tax Act, 1961 — Second Schedule — Auction sale — Exemption — Attachment — Recovery of Debts and Bankruptcy Act, 1993 — Section 31, Section 29 — Execution procedure after transfer to DRT — Held: Once execution is transferred to the DRT under the 1993 Act, its own procedure applies in supersession of the Code. Order XXI Rule 22 of the Code therefore has no impact on the validity of the auction sale. (¶37) Income Tax Act, 1961 — Second Schedule, Rule 2 and Rule 61 — Non-service of notice, substantial injury — Held further: Absence of notice under Rule 2 of the Second Schedule does not void a sale where the defaulter had actual knowledge of the proceeding. A sale is set aside under Rule 61 only on proof of substantial injury from non-service or irregularity. (¶39, 40) Code of Civil Procedure, 1908 — Section 60(1)(ccc) — Exemption personal to judgment-debtor — Held further: The exemption of a main residential house from attachment under Section 60(1)(ccc) of the Code is personal to the judgment-debtor, not his legal representatives. The mixed question of law and fact cannot be raised for the first time in a writ petition. (¶43, 45) Recovery of Debts and Bankruptcy Act, 1993 — Auction sale — Remand set aside, appeals disposed — Held further: The High Court's remand for a fresh inquiry on these questions was therefore erroneous. The impugned judgment is set aside; the Auction-Purchaser's and the Bank's appeals are allowed, and the legal representative's appeal is dismissed, with no order as to costs. (¶47, 48)

In the Court's own words

Paragraph 45For yet another reason, it is not necessary for us to examine the issue of applicability of Section 60(1)(ccc) of the Code. It is a well-settled legal proposition that a pure question of law can be raised at any stage of the proceeding but a question of fact that requires an investigation and inquiry for which no factual foundation has been laid cannot be allowed to be agitated in a writ petition. Thus, a mixed question of law and fact cannot be raised for the first time in a writ petition[^9].

Paragraph 46It is noteworthy that respondent no. 1 neither in her application before the Recovery Officer on 24.10.2004, nor in M.A. 65 of 2003 filed before the DRT, Delhi raised an objection with regard to plea of exemption under Section 60(1)(ccc) of the Code. The respondent no. 1 also did not raise the plea in her appeal against order dated 10.10.2006 (31 of 2006) and in the writ petition filed against the order dated 13.11.2006 passed by the DRT. The respondent no. 1’s plea of exemption under Section 60(1) (ccc) of the Code, came to light for the first time in a writ petition filed against the order dated 27.02.2007 rejecting the application for stay wherein the High Court while dismissing the writ petition observed that there is no iota on record that the exemption was ever claimed by her. In the proceeding before the DRT, leading to order dated 29.05.2007, the respondent no. 1 did not either plead or lead any evidence with regard to applicability of exemption under Section 60(1)(ccc) of the Code. Therefore, the High Court erred in entertaining and in remitting the matter to the Recovery Officer, DRT to decide the same after giving an opportunity to the parties to lead evidence. Accordingly, the third question is answered.

Acts & Sections

Section 31, Recovery of Debts and Bankruptcy Act, 1993Section 29, Recovery of Debts and Bankruptcy Act, 1993Section 22, Recovery of Debts and Bankruptcy Act, 1993Order XXI Rule 22, Code of Civil Procedure, 1908Section 60(1)(ccc), Code of Civil Procedure, 1908Rule 2 of the Second Schedule to the Income Tax Act, 1961Rule 10 of the Second Schedule to the Income Tax Act, 1961Rule 61 of the Second Schedule to the Income Tax Act, 1961Section 35, Punjab Relief of Indebtedness Act, 1934

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Also decided in this judgment

Under the Recovery of Debts and Bankruptcy Act, 1993, does Order XXI Rule 22 of the Code apply to an auction sale after execution is transferred to the DRT?Under the Income Tax Act, 1961, does the absence of notice under Rule 2 of the Second Schedule void a sale where the defaulter already had knowledge of the execution proceeding?Is the exemption from attachment of a residential house under Section 60(1)(ccc) of the Code of Civil Procedure available to the legal representatives of a deceased judgment-debtor?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections