1. This appeal is directed against the order made by the learned Subordinate Judge of South Kanara in R. E. P. No. 47 of 1960 on his file on 6-3-1961. The order impugned is a short one and we may usefully quote the same;
'As security, in terms of High Court's orderhas not been furnished, sale confirmed for Rs. 360/-.Issue Cheque for purchase of N. J. Stamp forRs. 12000/-'
The grievance of the appellants-judgment-debtors is that this order contravenes Rule 92 of Order 21 C. P. C. as the same was made when their application under Rule 90 of Order 21 C. P. C. was pending disposal and therefore, the same is liable to be set aside.
2. The proved facts of the case are as follows: In execution of the decree in O. S. No. 52/1958 on the file of the learned Subordinate Judge of South Kanara, the respondent-decree-holder brought to sale certain properties belonging to the judgment-debtors (in R. E. P. No. 47/60). The Judgment-debtors raised objections to the draft proclamation of sale. Their objections were overruled. As against that order they appealed to this Court, which appeal was later converted into a Civil Revision Petition. During the pendency of the Civil Revision Petition, the properties brought to sale were sold. In the Civil Revision Petition, they prayed for the stay of further proceedings in execution. The Court ordered stay of confirmation of sale on certain conditions as regards security. The security ordered was not given: Therefore, the stay was dissolved and ultimately the Civil Revision Petition was dismissed.
Thereafter, the judgment-debtors applied to the execution Court under Rule 90 of Order 21 to set aside the sale. Before admitting that application, the Court called upon the judgment-debtors to give security as contemplated by the first proviso (added by the Madras High Court) to Sub-rule (1) of Rule 90. The application to set aside the sale filed by the appellants was posted to 2-6-1961 for furnishing security. During the pendency of that application, the impugned order was passed (on 6-3-1961). It is urged on behalf of the appellants-judgment-debtors that the Court had no jurisdiction to pass that order as the application made by them under Rule 90 of Order 21 had not been disposed of on the date of that order. Rule 92(1) of Order 21 says:
'Where no application is made under Rule 89, Rule 90, or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.'
Sri B. P. Holla, the learned counsel for the respondent, contended that in view of the proviso, referred to earlier, the application under Rule 90 of Order 21 can be deemed to have been 'made' only when it is admitted and not on the date of its presentation. It is true that no application under Order 21, Rule 90 can be deemed to have been admitted till either notice of that application has been ordered to the decree-holder or decree-holders or security if any called for by the Court is given. But Shri Holla is not right in his contention that the expression 'made' found in Order 21, Rule 92(1) refers to the admission of the petition.
In an application made under Rule 90 of Order 21 as amended by the Madras High Court, there are there different stages if the Court calls for security from the applicant, firstly there is the presentation of the application, which is the same thing as making the application, secondly there is the admission of the application, and lastly the disposal of that application. This is evident from the language of Rule 90 of Order 21. This is what that Rule, as amended by the Madras High Court, says:
'(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or any 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;
Provided that the Court may, after giving notice to the applicant, call upon him before admitting the application, either to furnish security to the satisfaction of the Court for an amount equal to that mentioned in the sale warrant or to that realised by the sale, whichever is less, or to deposit such amount in Court;
Provided also that the Security furnished or the deposit made as aforesaid, shall be liable to be proceeded against only to the extent of the deficit on a resale of the property already brought to sale;
Provided further that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.'
But confirmation under Rule 92 can only be made after application made by the judgment-debtors to set aside the sale was pending (sic). Executing Court had confirmed the sale. This is clearly illegal Therefore, the same (the order confirming the sale as such) is set aside.
3. Sri B. P. Holla has brought to our notice that as a result of the confirmation of the sale, his client had produced into Court a sum of Rs. 360/,-for the purpose of non-judicial stamps for issuing the sale certificate. He says that his client is entitled to the refund of the same or for other appropriate orders in view of our order in this appeal. We have not gone into that question. The same will be gone into by the Executing Court.
4. In this appeal, the parties will bear theirown costs.
5. Appeal allowed.