1. This appeal by the 8th defendant who is the widow and legal representative of the third defendant, is directed against the decree and judgment of the learned Additional District Judge, Nellore dated September, 13, 1968, by which the suit O. S. 3/1965 instituted by the respondents herein was decreed..
2. That suit itself was instituted in forma pauperis for partition and separate possession of the plaintiff's 1/4th share in the plaint schedule property and for profits.
3. The point raised in this appeal for determination is whether an order passed by a Court under sub-rule (1) of Rs. 92 of Order 21 of the Code of Civil Procedure confirming the sale of immovable property held in execution of a decree representatives of the judgment debtor who died subsequent to the date on which the sale was held and prior to the date of confirmation of sale were not brought on record notwithstanding the fact that the applications filed by the judgment-debtor under Rules 89 and 90 of Order 21, Civil P.C. were disallowed. The Counsel appearing on either side stated that the point so formulated, was not covered by any authority either of this Court or of any other Court.
4. The plaintiff is the mother of defendants 5, 6, and 8. The defendants 1 and 2 are the decree-holders in the suit O.S.No. 272/47 on the file of the District Munsif's Court Nellore filed against one by name Rajamannar Naidu. The third defendant was the auction purchaser and the 8th defendant the wife of the third defendant was brought on record as his legal representative.
5. The plaint schedule property consists of two houses one a terraced house and the other a tiled house with vacant site bearing two door Nos. 83 and 84 in Ward No. 17, Subedarpet, Nellore town. Those houses belonged to one by name Alandur Rajamannar Naidu who purchased them under a registered sale deed in the year 1944 for a consideration of Rs. 3,400/- The sale -deed Ex. B-10 recites that the said Rajamannar Naidu raised Rs.2,500/- by mortgaging the same property to one Chaturvedula Ramachandraiah. The same property was thereafter mortgaged to the 4th defendant. Rajamannar Naidu had no wife or children. The plaintiff is the widow of Rajamannar Naidu's brother-in-law i.e., wife's younger brother who died in the year 1945. Defendants 5 to 7 as already noticed are the sons of the plaintiff and defendants 5 to 7 to his house and was maintaining them. The said Rajamannar Naidu executed a will dated January 27th 1959 (Ex. A-1) whereunder he bequeathed the plaint-schedule properties to the plaintiff and defendants 5 to 7, and he died on November 28th , 1959.
6. The third defendant was the auction purchaser of the plaint-scheduled house in execution of the decree passed in O.S. No. 272/47 and the 8th defendant as has been noticed is the wife and legal representative of the third defendant.
7. The suit house was subject to two mortgages one in favour of Chaturvedula Ramachandraiah as noted already for an amount of Rs. 2,500/- and the other in favour of the 4th defendant for a sum of Rs.4,000/- Besides this the property in question is subject to a decree obtained by the municipality against Rajamannar Naidu for certain municipal taxes. An execution petition was filed for the sale of the property in question subject to the two mortgages and the decree obtained by the municipality.
8. The facts leading to the institution of the suit which gave rise to this appeal are as follows :
9. The defendatns 1 and 2 filed the suit O.S. No. 272/47 in the District Munsif's Court, Nellore against Rajamannar Naidu and obtained a decree . In execution of the said decree in E.P.No. 63/55 the plaint schedule property was attached and brought to sale subject to two mortgages and the decree in favour of the municipality. The judgment-debtor was served with sale notice. Upset price was originally fixed at Rs.1,500/- No sale could be held in the first instance for want of bidders. The first defendant filed E.A. 834/55 to have the upset price reduced to Rupees 500/-. The judgment-debtor at that stage intervened in the matter by raising objections. The Court thereupon directed deposit of Rs.35/- as Commissioner's fees. The judgment-debtor did not deposit Rs.35/- as directed by the Court in spite of time being extended twice. Overruling the objections of the judgment-debtor the Court ultimately reduced the upset price to Rs.1,250/- subject of course to the aforesaid two mortgages and the decree obtained by the municipality.
10. The judgment-debtor thereafter filed E.A. 524/66 to have the sale stayed on the ground that the mortgages subject to which the property was brought to sale are nominal ones not being supported by any consideration that the decree-holders and the mortgagees were colluding to have the plaint schedule property sold for a low price and that was the reason why they have chosen to bring the property to sale in a secret way without necessary proclamation. The judgment-debtor gave evidence also in that enquiry. After due enquiry the Court dismissed the application of the judgment-debtor. Those were the steps taken by the judgment-debtor prior to the sale.
11. The first defendant (decree-holder) filed a petition for permission to bid at the sale and permission was duly accorded by the Court.
12. The first defendant (decree holder) brought the property to sale after making the necessary proclamations. The sale of the property was held on June 18, 1956. The third defendant was the highest bidder for Rs.1,260/-
13. The judgment-debtor filed an application E.A. No. 702/56 under O.21 R.90. Civil P.C. to have the sale set aside on the ground that the same was vitiated by material irregularity. He also filed E.A. 703/56 under O. 21 R.89, Civil P.C. requesting the Court to permit him to furnish security in lieu of the amount to be deposited. The District Munsif's Court refused to accept the security and directed him to deposit cash by September 10th 1956. The judgment-debtor did not comply with that . That application E.A. 703/56 was therefore dismissed on July 16, 1956. E.A. 702/56 was also dismissed on September 10th, 1956. The attempt of the judgment-debtor subsequent i.e. E.A. 702/56 and E.A. 703/56 to have the orders passed therein reviewed was found to be futile as the review applications of the judgment-debtor were also dismissed.
14. As against the order dismissing E.A. 702/56 the judgment-debtor filed an appeal i.e., C.M.A. 43/56 before the District Court Nellore. As against the order dismissing E.A. 703/56 the Judgment-debtor filed a revision petition C.R.P. No. 1056/56 on the filed of the High Court of Andorra Prudish. During the pendency of the appeal C.M.A. 43/56 the judgment-debtor Rajamannar Naidu died on 28.11.1959. The plaintiff and defendants 5 to 7 were brought on record as the legal representative of Rajamannar Naidu on the basis of the will in C.R.P.No. 1056/56 and that C.R.P. was dismissed on March 8th, 1961.
15. Steps were taken by the defendants 5 to 7 by filing I.A.No. 71/60 in C.M.A. No. 43/56 to have them added as the legal representative of the deceased judgment-debtor in that appeal. I.A.71/60 in C.M.A. 43/56 stood posted for notice to the respondents by March 17th 1960. The petitioner's advocate is stated to have failed to give notice by that date. Fresh notice was ordered for March 24th 1960. But still notice was not given. That application I.A., 71/60 was therefore dismissed on March 24th 1960.
16. We arrive at another stage where the plaintiff and defendants 5 to 7 evinced interest in the matter by filing I.A. 165/60 to have them impleaded as the legal representatives of the deceased Rajamannar Naidu the judgment-debtor, I.A. 166/60 seeking setting aside of the abatement of the appeal and I.A. 167/60 requesting the Court to have the delay in filing the application condoned. All those three applications were heard together and they were dismissed on September 5th, 1961. The appeal C.A. 43/56 was dismissed consequently.
17. The plaintiff and defendants 5 to 7 thereupon preferred a revision petition to the High Court C.R.P.No. 2048 of 1961 as against the order dismissing their appeal and they have preferred an appeal A.A.O. 114/62 against the order in I.A. 166/60 filed for setting aside the abatement of the appeal. Both of them were dismissed on November 23rd 1964.
18. Subsequently to the dismissal of C.M.A. 43/56 the sale of the plaint schedule property in favour of the third defendant was confirmed on November 20, 1961 without impleading the legal representatives of the judgment-debtor Rajamannar Naidu as parties. The third defendant applied for delivery of possession in E.A. No. 897/61, and delivery was ordered. When the tenants in possession of the house offered obstruction the third defendant was compelled to file an application E.A. No. 969/61 praying for the removal of the obstruction and delivery of possession. Delivery of symbolic possession on that petition was ordered and Ex. Bb-9 is the certified copy of possession receipt.
19. It is under those circumstances the present suit giving rise to the appeal, was instituted for partition on the ground that the plaintiff and the defendants 5 to 7 as testamentary heirs of Rajamannar Naidu under Ex. A-1, are entitled to a 1/4th share each that the court-sale of the plaint-schedule property made on June 18th 1956, was vitiated by fraud, material irregularities and illegalities and want jurisdiction, and that the confirmation of sale and other proceedings were not binding on them since they are not parties to the same.
20. The claim of the plaintiff was resisted by the defendants 1, 3 and 4 in separate written statements wherein it was contended that the auction sale was a perfectly valid one, that the plaintiff and the defendants 5 to 7 have absolutely no interest in the plaint schedule property, and that the suit is barred by the principle of res judicata, estoppel, limitation and Section 47, Civil P. C. The bar of Order 21, Rule 92 (2) Civil P. C. Was also pleaded. Defendants 2, 5 to 7 remained ex-parte. The third defendant, as already noticed, died during the pendency of the suit, and the 8th defendant, his wife and legal representative, were brought on record.
21. After having framed the appropriate issues on the basis of the pleadings in the case, the Court below found that there were no irregularities or illegalities in the proclamation and conduct of the sale and that there was no fraud committed in the sale of the property. The Court below also found that the plaintiff did not succeed in establishing substantial injury to her by reason of the alleged irregular and fraudulent sale as required by the last proviso to Rule 90 of Order 21, Civil P. C.
22. The lower Court in paragraph 16 of its judgment that the right under the Order 21, Rule 90, Civil P. C. was exercised by Rajamannar Naidu, himself that the application under R. 90 was dismissed and consequently the sale was confirmed, and that Order 21, does not provide any remedy to an aggrieved person to have the sale set aside after confirmation. The Court below negatived the contention of the appellants herein, that the proceedings are hit by the principle underlying the doctrine of res judicata. It was of the view that the principle of the res judicata is inapplicable to execution sales. It was held that the suit was barred by limitation if it comes under Article 165 of the Limitation Act. But the Court below ultimately placing reliance upon the decision in Arunachala Chettiar v. Vadla Koundan, : AIR1952Mad871 , held that the sale though valid, the confirmation of that sale is bad because of the fact that the legal representatives of the judgment-debtor were not brought on record before the confirmation order was passed by the Court below. On the question of limitation, the Court below held that the suit was not barred by limitation. Aggrieved by these findings, the 8th defendant preferred the above appeal.
23. Sri M. B. Rama Sarma, the learned Counsel appearing for the appellant reiterated before this Court the position taken by his client in the Court below, whereas the learned counsel appearing for the Respondent No. 1 endeavored to support the decision under appeal.
24. The main points that arise for consideration in this appeal are, firstly whether the suit is not vitiated by reason of the applicability of the principle underlying the doctrine of res judicata ; and,
Secondly whether the order of the Court below passed under sub-r. (1) of Rule 92 of Order 21, Civil P. C. Confirming the sale, is bad for the reason that the legal representatives of the judgment-debtor who died subsequent to date of sale and prior to the date of confirmation were not brought on record notwithstanding the fact that the judgment-debtor availed himself of all the remedies open to him in law including those under Rules 89 and 90 of Order 21, Civil P. C.
25-26. I may as well dispose of the first point first. The grounds on which the sale in favour of the third defendant, whose legal representatives is the appellant, was sought to be impugned were, fraud and material irregularity. Those matters were raised by the judgment-debtor through whom the plaintiff and defendants 5 to 7 claim the property in question. The judgment-debtor Rajamannar Naidu, filed, as I have already noticed E. A. 702/56 under O. 21 R. 90 Civil P. C. To have the sale set aside on the ground that the same was vitiated by fraud, material irregularities and illegalities and other grounds. Steps have also been taken by the judgment-debtor under Order 21, Rule 89 Civil P. C. by filling the application E. A. No. 702/56. Those two applications were dismissed, and the appeals and revision petitions filed thereupon, were also ultimately dismissed. The decision rendering in those execution proceedings, operates as res judicata. The learned Additional District Judge was of the view that the principles of res judicata cannot be applied to execution sales and that the suit was not barred on account of that.
27. This part of the case need not detain us, as the position is very clear that the principle underlying res judicata is applicable to the execution proceedings as well. Without the need to multiply the cases cited, suffice it to refer to a decision of the Supreme Court in Mohanlal v. Benoy Kishna. : 4SCR377 . It was held by their Lordships of the Supreme Court at page 72 of the Report ' that the principle of constructive res judicata is applicable to execution proceedings, is no longer open to doubt. '
28. That the principle of res judicata is applicable to execution proceedings as well, is a matter that was decided by the decision of this Court in the case of K. Ramakrishna Das v. S. Purnachandra Rao AIR 1962 Andh Pra 129. Needless to multiply the citation of cases with respect to this aspect of the matter, and I find it is too late in the day to contend for the position that the principle underlying res judicata is not applicable to the execution proceedings. I am definitely of the view that the principle underlying the doctrine of res judicata, is applicable to the execution proceedings as well, and on that score, the suit is liable to be dismissed.
29. We shall take up then the second point for consideration. In execution of the decree obtained by the defendants 1 and 2 in O. S. 272/47 on the file of the Court of the District Munsif, Nellore, the plaint schedule property was brought to sale and the sale was held on June 18th, 1956. The third defendant was the highest bidder in the auction held by the Court and that sale was confirmed by the Court on November 28th, 1959. I.e., subsequent to the date of sale but prior to the date of confirmation of sale. As the legal representatives of the said Rajamannar Naidu, were not brought on record at or before the time of confirmation of sale the Court below was of the view that the confirmation was bad. The tenability or maintainability of that proposition is canvassed in this appeal. A scrutiny of the scheme emanating from the provisions contained in the Code of Civil Procedure in so far as it is relevant would facilitate a better appreciation of the points raised. We shall examine the provisions contained in the Code of Civil Procedure which are intended to safeguard the position of the judgment-debtor. Under Section 27, Civil P. C. Where a suit has been duly instituted, summons is required to be issued to the defendant to appear and answer the claim and it is only with a view to enabling him ( the defendant ) to appear and answer the claim made against him by plaintiff, that this provision is enacted. We shall now examine the provisions by virtue of which the interests of the judgment-debtor are sufficiently safeguarded where immovable property was sought to be sold in execution of such a decree.
30. Under Rule 89 of Order 21, Civil P. C. , where immovable property has been sold in execution of a decree, the judgment-debtor or any person deriving title from the judgment-debtor, or any person holding interest in the property has been given the right to apply to have the sale set aside on his deposing in Court :_
(a) for payment to the purchaser, a sum equal to 5 per cent, of the purchase money, and
(b) for payment to the decree-holder the amounts specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. The payment ' to the purchaser ' is obviously intended as compensation to him.
31. Under Rule 90 of the said Order, 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, has been given the right to apply to the Court to have the sale set aside on the ground of a material irregularity or fraud in publishing or conducting it. Rule 91 of the said O. 21 Civil P. C. Provides for an application by a purchaser to have the sale in execution of a decree, set aside on the ground that the judgment-debtor had no saleable interest in the property sold. These are the protective measures envisaged and enacted in the interests of the persons concerned viz., the judgment-debtor, the decree-holder or the auction-purchaser and other persons claiming interest through them, to have the sale held of immovable property in execution of a decree, set aside on one or the other of the grounds mentioned in the various relevant rules mentioned heretofore. The judgment-debtor after having been given an opportunity before the passing of the decree to answer the claim made against him by the plaintiff, had been given so far as the facts of the present case are concerned, opportunities as contemplated under Rules 89 and 90 of Order 21, Civil P. C. to have the sale of immovable property effected in execution of a decree, set aside. The application, both under Rule 89 as well as under Rule 90 of Order 21, Civil P. C. By the persons concerned, shall have to be made within 30 days from the date of sale as per Article 166, Sch. I of the Limitation Act of 1908 which corresponds to Art. 127 of the Limitation Act, 1963. Where such applications under Rule 89 or 90 are made and allowed, the Court has been given power under sub-rule (2) of R. 92 of Order 21, Civil P. C. to set aside the sale, and the proviso appended thereto states specifically that no order can be made unless notice of the application has been given to all persons affected thereby.
32. Under sub-rule (1) of R. 92, where no application is made under R. 89 or R. 90 or R. 91, or where such application is made and disallowed, the Court has been given power to make an Order confirming the sale and thereupon the sale will become absolute. In the instant case, we have noticed already that the sale was held on June 18th, 1956. An application under Order 21, Rule 90, Civil P. C. I. E., E. A. No. 702/56 and an application under Order 21, Rule 89, Civil P. C. I.e. E. A. No. 703/56 were filed by the judgment-debtor, and they were ultimately disallowed by the Court. We find, steps being taken by the plaintiff and defendants 5 to 7 to get themselves added on record as the legal representatives of Rajamannar Naidu. We have noticed that the sale was held on June 18th, 1956 and the confirmation of sale was on November 20th, 1961 and Rajamannar Naidu, the judgment-debtor died on November 28th, 1959. Under those circumstances, we are concerned with the situation obtaining directly under sub-rule (1) of R. 92, where an application under Rule 89 or 90 or 91 of Order 21, Civil P. C. made by the judgment-debtor being found disallowed. We shall read sub-rule 2 (1) of Rule 92 of Order 21, Civil P. C. In this context :-
'92 (1). 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. '
33. On a reading of the language employed in sub-rule (1) of R. 92 of O. 21 Civil P. C. What is manifest is that when once applications made under Rule 89, and Rule 90 were disallowed, the Court does not seem to be left with any option or choice than to make an order confirming the sale and the sale then becomes absolute.
34. Shri M. B. Rama Sarma, the learned counsel appearing for the appellant, submits that the nature of the activity involved in making an order under the said circumstances under sub-rule (1) of R. 92, is merely ministerial in the sense that no discretion was left to the Court to do anything than that of making an order confirming the sale.
35. As against that, we find the learned counsel appearing for the respondents contending for the position, that where the judgment-debtor dies after the date of the sale, but before the same was confirmed the legal representatives shall have to be brought on record and if any order of confirmation was made by the Court without bringing the legal representatives on record, the order of confirmation is bad and void.
36. It may be noted that the provision of law as found adumbrated in sub-rule (!) of Rule 92 also does not provide for bringing on record the legal representatives of the judgment-debtor, who dies between the date of sale and the date of confirmation. It may also be noted that the duty imposed upon the Court, under the aforesaid provision, is couched in a mandatory form, leaving little or no discretion with the Court, excepting that of making an order of confirmation, provided the conditions, mentioned therein, are found fulfilled, and the conditions in this case, as contemplated under sub-rule (1) of Rule 92, as already note above, were found fulfilled in the sense that the applications made by the judgment-debtor, under Rules 89 and 90 of Order 21, Civil P. C. were disallowed by the Court, thus leaving the Court free to discharge its duty. That factual situation was not disputed by the counsel appearing for the respondents. We may also notice, in this connection, that the provision as is contained in the proviso appended to sub-rule (2) of Rule 92, requiring the issuance of notices to the persons affected, is found designedly absent in the case obtaining under sub-rule (1) of Rule 92, the reason being obvious. While setting aside the sale if there are certain persons that are likely to be affected, notices shall have to be given under sub-rule (2) of Rule 92, but in a case where all the remedies available under Rules 89, 90 and 91 by an application filed within thirty days after the sale were found to have been exhausted and when such applications under Rules 89, 90 and 91 were disallowed there is no one, who can be said to have had his interest affected as to be given any notice. We may also note, in this connection, that for getting an order of confirmation passed under sub-rule (1) of Rule 92 no application by any person need be filed to the Court, nor the provisions of the Limitation Act as applicable to application under Rules 89, 90 or 91 are attracted to a case contemplated under sub-rule (1) of Rule 92, to provide for the issuance of a notice to the persons concerned as provided for in the proviso appended to sub-rule (2) it may safely be assumed that the object of the Legislature in enacting a provision like sub-rule (1) of Rule 92 is to render the sale as confirmed, under that Rule, subject to the fulfillment of the conditions mentioned therein immune from any attack from any quarter, as otherwise, the possibility of securing the maximum price in the sale of immovable property effected in execution of a decree, will be slender.
37. Under sub-rule (1) of Rule 92, we find firstly, that no obligation is being cast upon any person, much less upon an auction purchaser, to bring the Legal Representatives of a judgment-debtor, who dies subsequent to the date of the sale, but before the date of confirmation on record ; Secondly that no application under that rule is necessary for enabling the Court to pass an order of confirmation, not the proceedings under that rule, are governed by any provision contained in the Limitation Act ; thirdly, when the Court was required to pass an order under the aforesaid Rule of confirmation only after the applications under Rules 89, 90 and 91 are disallowed, the situation, according to the Legislature, must be taken to have become ripe and reached a stage where there are left no interests to be safeguarded for any notice being given to the persons effected as provided for under the proviso appended to sub-rule (2) of Rule 92, or as to bring any persons on record as Legal Representatives of the judgment-debtor, Fourthly, where the judgment-debtor, subsequent to the sale being held, is found to have exhausted all the remedies available to him, as in the case here in filing applications under Rules 89 and 90 of Order 21, Civil P. C. and getting them disallowed, no useful purpose is likely to be served by bringing the legal Representatives of such a judgment-debtor on record, as, even if the judgment-debtor was alive, he could not have done anything and what he could not have done after having done what he could do his legal representatives could not have been permitted to do, and, as such the interests of justice are not likely to be defeated at all by not bringing the Legal Representatives of the judgment-debtor on record, before the date of confirmation; and lastly, when once the order of confirmation is made the sale becomes absolute and the purchaser must be taken to have his interests crystallized and vested not from the date of confirmation but from the date of the sale.
38. Under these circumstances, I am the view, having regard to the aforesaid circumstances, that there is little or nothing left for the judgment-debtor, much less for the legal Representatives of the judgment-debtor to have their interests safe-guarded, so as to render any confirmation bad for the reason than the Legal Representatives of the judgment-debtor were not brought on record before the confirmation of the sale. I am of the opinion, for the aforesaid reason, that an order, passed by the Court, confirming the sale of immovable property held in execution of a decree, without bringing on record the Legal Representatives of the judgment-debtor, who died subsequent to the sale but before the confirmation of the sale, is not void especially, because of the fact, that the judgment-debtor has had his applications filed under Rules 89 and 90, disallowed after which alone, in this case, the order of confirmation was passed. When the order of confirmation is, under those circumstances perfectly valid, it is admitted that the sale, in no event, can be considered to have been vitiated element, found detected in the confirmation order. I am, therefore, of the opinion that the confirmation of the sale on November 20, 1961, and the sale on June 18, 1956, are valid and not vitiated by any infirmity whatsoever.
39. We shall next propose to examine the cases cited across the bar. The Court below relied very heavily upon the decision of Satyanarayana Rao J. In : AIR1952Mad871 , wherein it was held that after the sale but before confirmation, the judgment-debtor dies and the confirmation order is passed without impleading his legal representatives, the confirmation is a nullity and not binding. But the sale, it was held there, nevertheless, is a valid and cannot be set aside. The sale of the properties in that case took place in execution of a small cause decree on November 9, 1942, and the judgment-debtor died on November 14, 1942, and the confirmation order was passed of that sale on December 12, 1942. No application by the judgment-debtor, in that case, either under Rule 89 or 90 or Rule 91, was made within thirty days after the sale before the Court. The learned Judge, on a reading of the decision, appears to have been swayed away by the circumstances that when the judgment-debtor died within thirty days after the sale, there is no possibility for the legal representatives of the judgment-debtor to avail themselves of the remedies open to them under Rules 89 and 90. That seems to be the main circumstance, by the virtue of which the learned Judge came to the conclusion that the confirmation will be prejudicial to the legal representatives of the judgment-debtor if they are not brought on record. The facts of that case are clearly distinguishable from the one with which we are for the present concerned, in the sense that, in the present case, subsequent to the sale being effected on June 18, 1956, we find the judgment-debtor filing applications under Rule 89 and Rule 90 and getting them disallowed, thus, exhausting practically all the remedies available to him, leaving little or nothing for anyone, much less for his legal representatives to agitate thereafter. The text of the decision of the learned Judge, if understood in that context, what is manifest is that that case is clearly distinguishable from the present one, and, moreover, it was held specifically that the sale is valid and is not liable to be set aside. Note was taken of in that case of decision rendered in Kamakhya Dutt Ram v. Shyam Lal, ILR 4 Luck 635 = ( AIR 1929 Oudh 235 ). In that case the auction sale was held on October 27, 1925. That was confirmed on December 4, 1925 without bringing the Legal Representatives of the deceased judgment-debtor on record and without notice to them. A contention was raised in that case to the effect that the sale, for the aforesaid reason, was void. In that context, it was held at page 640 of the Report, thus :
'The sale had taken place in the lifetime of the judgment-debtor and there are no provisions in the Code of Civil Procedure which require legal representatives of a judgment-debtor, who has died after the sale, to be brought on record for the purpose of confirmation. The case may be different if a judgment-debtor dies before the date of the sale and the sale takes place behind the back of his representatives, but we express no opinion on that point. '
It may be noticed from the facts of that case that the sale was held on October 27, 1925 and within one month thereafter, that is on November 3, 1925, the judgment-debtor died and the confirmation took place on December 4, 1925. That was a case where we find the judgment-debtor not availing himself of the remedies contemplated under Rules 89 and 90 of Order 21, Civil P. C. as in the case obtaining in the instant case, but nevertheless, it was held there that the confirmation was valid.
40. The next case referred to is the case of Puttayya v. Varanashi Subraya, : AIR1953Mad988 of the Madras High Court. In that case a mortgage decree was passed by which the defendants therein were required to pay a sum of money to the plaintiffs within the stipulated period. In default of which a final decree was directed to be passed for sale of the mortgaged property. There was a default and a final decree was passed, and the hypothecate was sold by public auction on January 16, 1937 and the mortgagee decree-holder himself became the purchaser. Before the sale was confirmed, the first defendant died on January 23, 1937. No steps were taken to declare defendants 2 and 3 as the legal representatives of the 1st defendant and no attempt was made to appoint anybody as guardian ad litem of the minor defendants 2 and 3. But the sale was confirmed on February 24, 1937, and the sale certificate dated March 15, 1937 was issued to the auction-purchaser who obtained delivery on April 17, 1937. In that context, a contention was raised to the effect that the confirmation as well as the sale were bad in law because the legal representatives of the deceased 1st defendant, the judgment-debtor, were not brought on record and no guardian for defendants 2 and 3 was appointed before the order of confirmation was made by the Court. The Court held that both these infirmities were only irregularities not affecting the validity of the confirmation of the sale. The following observations, at page 211 of the Report, were relied upon by the learned counsel appearing for the appellant :
'Even in cases where no legal representative of a deceased judgment-debtor was brought on record after sale but before confirmation, it has been held that the confirmation without a legal representative is only an irregularity which would not invalidate the sale as void. The provisions of clauses (2) and (3) of Order 21, Rule 92, Civil P. C., are the governing factors in matters of this kind. Under clause (1) of the rule where after a sale takes place no application is made under Rule 89 or Rule 90 or Rule 92, to set aside the sale, or where such application is made and disallowed the Court shall make an order confirming the sale and thereupon the sale becomes absolute. The period of limitation for making applications under Rules 89, 90 and 91 of Order 21, Civil P. C., is thirty days as prescribed under Art. 165 of the first schedule of the Limitation Act. Therefore, after the lapse of thirty days, if no application is made to set aside the sale or if during that period an application is made and subsequently that application is disallowed then it is the bounden duty of the Court to confirm the sale without any fresh application or a request from the decree-holder or the purchaser in Court auction. When once a sale takes place and the decree-holder is not the purchaser, he ceases to have any interest in the property; all the burden which the decree-holder will then had is shifted on the shoulders of the purchaser. There is no provision in the Code of Civil Procedure for a purchaser to apply for bringing on record the legal representatives of the deceased judgment-debtor after the sale takes place but before the confirmation. There is also no period of limitation prescribed for such bringing on record. The period of ninety days for bringing on record a legal representative in a suit cannot apply to a case where the judgment-debtor dies after the sale but before sale confirmation. The confirmation might be at any time and need not necessarily be within thirty days of the sale. We have also to remember that under clause (1) of Rule 92 of Order 21, there is no obligatory duty of issuing any notice of the confirmation to the judgment-debtor unlike what we find in clause (2) of that rule. Though the confirmation of sale is a judicial matter and not an administrative act, the Code does not provide for the issuing of any notice to the judgment-debtor whose property has been sold in auction.'
41. : AIR1952Mad871 , were also referred to in the judgment. We find in these aforesaid decisions that the legal representatives, sought to be brought on record were already on record, and a formal order only was necessary to record that factum. That was considered to be merely an irregularity not vitiating the confirmation of the sale. The Division Bench there held that non-appointment of the guardian also is only an irregularity not affecting either the confirmation or for that matter, the sale, that was confirmed. At page 214 of the Report, was held thus :-
'A review of the decisions which we have just noticed above shows that even in cases where at the time of sale a minor was not properly represented by a guardian but when execution was ordered there was proper and sufficient representation of the minor, then such a sale could not at the worst be held only an irregular sale and not a void one. All the more so should we hold that a sale validly held cannot be declared invalid by the mere fact that at the time of confirmation the judgment-debtor's minor sons were not represented by guardian. The question which arises in this case is really bereft of direct authority. But the principles deducible from analogous cases is that it is impossible to hold that the confirmation is invalid.'
42. Though the situation present in that case is not similar to the one obtaining in the present case, still, the observations made therein, as referred to heretofore, are certainly helpful to the appellant herein. The above case is the one where there was no formal order passed recording the factum that the legal representatives of the deceased judgment-debtor were already there on record. That formality of not formally recording the persons who are already there on record as Legal Representatives of the deceased judgment-debtor and the non-appointment of the guardian for the minor legal representatives, were styled or characterised by the Bench as merely an irregularity and effecting the validity or otherwise of the confirmation of the sale, or the sale that was confirmed.
43. A decision rendered in Smt. Lakshmi Ammal v. Sri Thangaraju Padayachi AIR 1958 Mad 396 was relied upon by the learned counsel for the appellant to show that no application by the auction purchaser was necessary under the Civil P., C. To enable the Court to confirm the sale, and that the confirmation of sale was the duty of the Court which it should suo motu perform without being moved by any party. This was relied upon by the learned counsel for showing further that an order of confirmation is only ministerial one to be passed automatically after the fulfillment of the conditions mentioned in sub-rule (1) of Rule 92 of Order 21, Civil P. C. leaving nothing for anybody to agitate upon thereafter.
44. Sri M. B. Rama Sarma, the learned counsel relied upon a decision rendered in the case of Pethaperumal Ambalam v. Chidambaram Chettiar. : AIR1954Mad760 for the following proposition namely, that on the issuance of a sale certificate to the purchaser under Order 21, Rule 94, the latter's title becomes perfected and complete and his right to possession unimpeachable as against the parties to the suit as well as those claiming under them, and that there is no obligation on his part to apply to the Court for delivery, and it is open to him to obtain possession out of the Court. If he took possession outside Court either by taking ' Khas ' possession of the property, or getting an attornment or recognition from the tenants in possession, neither the judgment-debtor nor his representatives, if he were dead can raise an objection to such possession. In such a case the death of the judgment-debtor after the sale certificate and before possession had taken by the purchaser would have no legal effect notwithstanding that the legal representatives have not been impleaded before possession is taken. Reliance is placed upon this decision by the learned counsel having regard to the language employed both in Rule 94 as well as in Rule 92 (1) to have a situation obtaining in Rule 92 approximated to the one obtaining under Rule 94 in the sense that the Court in either case, has no other option, excepting that of doing what it was enjoined statutorily under the two provisions to do without being left with any discretion. Under Rule 94 of O. 21, where a sale of immovable property has become absolute, the Court shall have to grant a certificate specifying the particulars mentioned therein. The objection raised to the effect that no legal representative has been brought on record before possession is directed, is held untenable because of the fact that the duty cast upon the Court under that rule is to issue a certificate after being satisfied that the sale of immovable property has become absolute, and as such, on account of the mandatory language employed in Rule 94, requiring the Court to issue a certificate provided the condition mentioned therein is satisfied. Neither the interests of the judgment-debtor nor for that matter, those of his legal representatives can be said to have been affected as to need bringing the legal representatives of the judgment-debtor on record. The same position, according to the learned counsel, obtains even in the case governed by sub-rule (1) of Rule 92, where the Court has been enjoined to pass an order, confirming the sale provided there is no application made under Rules 89, 90 and 91, or when such applications were disallowed.
45. There is considerable force in contention in approximating the situation under Rule 94 (1) to one contemplated under Rule 92 as not to render it any further obligatory on the part of anyone, much less upon the auction purchaser, to bring the legal representatives of the judgment debtor on record before the confirmation of the sale is effected.
46. The decision in Satyanandam v. P. Namayya, AIR 1938 Mad 307 was relied upon for the following proposition ; that there is no provision in the Code of Civil Procedure for an application by the auction-purchaser for confirmation of sale ; confirmation follows automatically, under Rule 92 (1) and the setting aside of the sale follows automatically, under Rule 92 (2) of Order 21. An order rejecting an auction-purchaser's application for confirmation of the sale is not an applicable matter, not can it be revised. This decision was cited more with a view to impressing that the nature of the activity involved in the Courts passing an order under sub-rule (1) of Rule 92 of Order 21 Civil P. C., is more ministerial in character on account of the fact that if the condition is fulfilled, an order of confirmation has got to be passed automatically.
47. The case of Seethanna v. Lakshmi Devi, AIR 1962 Andh Pra 520 was relied upon for the following proposition occurring at page 521 of the Report :
'As we have already remarked, Order 22, Civil P. C. Governs only suits and appeals and does not come into play in regard to other proceedings. If there is no other law which compels a party to bring on record the legal representative within a particular time, it cannot be posited that an application to bring the legal representatives on record in proceedings other than suits or appeals abates or lapses. The legal representatives have to be brought on record in such proceedings before final orders are passed, so that the orders might be binding on them. It is only for that purpose the present application was brought. It is to be borne in mind that after the sale is confirmed the title to the property covered by the sale vests in the auction-purchaser and nothing remains in the judgment-debtor. That being so, there is nothing for the judgment-debtor to urge by way of answer in an application for delivery of that property. Consequently, it is not necessary to issue notice to the judgment-debtor in such an application. If it is unnecessary to serve the judgment-debtors with notice, it is equally so even with regard to their legal representatives because they could compose such a application only on grounds which were open to the judgment-debtors. So possession could be obtained without notice to them or even without formally bringing them on record.'
This case was relied upon for the purpose of showing that when at the time of the delivery of the possession of the property sold in execution of a decree, the legal representatives of the judgment-debtor need not have to be brought on record, as the judgment-debtor himself is left with no objection to agitate upon, at that stage, and when no notice was necessary to the judgment-debtor, no useful purpose will be served by bringing the legal representatives also of the judgment-debtor on record who could not have done what the judgment-debtor himself would and could not have done, especially, in view of the fact that after the confirmation of sale, the title to the property covered by the sale vests in the auction-purchaser and nothing remains in the judgment-debtor to object to or agitate upon.
48. A decision of the Full Bench of Kerala High Court in Subramonian Nadar v. Chinnan Nadar, : AIR1963Ker5 ( FB ) was relied upon for the purpose of showing that there is no question of effective representation in the case of execution proceedings.
49. In the case of Janak Raj v. Gurdial Singh, : 2SCR77 the Supreme Court held that the Court shall have to confirm a sale of the immovable property effected in execution of an ex-parte decree, notwithstanding the fact that the decree is stated to have been set aside at the time when the confirmation is sought for. In that case, one by name Swaran Singh obtained an ex parte decree on February 27, 1961 against Gurdial Singh for Rupees 519. Sale took place in execution of that decree. The appellant before the Supreme Court became the highest bidder on December 16, 1961. On January 2, 1962, he filed an objection petition against the sale of the house, on the ground that the house, which was valued at Rs. 25,000 /- has been auctioned for Rs. 5,000 /- only, and that the sale had not been conducted in a proper manner inasmuch as there was no due publication of it and the sale too was not held at the proper hour. The executing Court stayed the execution of the decree also by an order dated April 19, 1962, till the disposal of the application for setting aside the ex parte decree. On October 26, 1962, the ex parte decree against the judgment-debtor was set aside. On November 3, 1962, the auction purchaser made an application for revival of the execution proceedings and for confirmation of the sale under O. 21, R. 92 of the Code of Civil Procedure. On November 7, 1962, the judgment-debtor filed an objection thereto contending that the application for revival of execution proceedings was not maintainable after setting aside the ex parte decree and that the auction purchaser was in conspiracy and collusion with the decree-holder and as such not entitled to have the sale confirmed. The case of the collusion was not substantiated. The executing Court, overruling the objections of the judgment-debtor, made an order on August, 31st 1963, under O. 21, R. 92, confirming the sale. The validity of that confirmation is attacked. In that context their Lordships of the Supreme Court held at page 224 of the Report thus :
'Ordinarily, if no application for setting aside is made under any of the provisions of Rules 89 to 91 of Order 21 or when any application under any of these rules is made and disallowed, the Court has no choice in the matter of confirming the sale and the sale must be made absolute. If it was the intention of the legislature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provision to that effect either in Order 21 or in Part II of the Code of Civil Procedure of 1908 which contains Sections 36 to 74 ( inclusive ). ' Their Lordships in summing up the position, at page 228 of the Report, further observed thus :- 'For the reasons already given and the decisions noticed, it must be held that the appellant-auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree has been set aside. The policy of the legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure of 1908 makes ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the judgment-debtor did not take resort to the provisions of O. 21, R. 89.
Very strong reliance is placed on this decision by the learned counsel for the appellant to impress upon this Court and emphasise the ministerial character of the order to be passed by way of confirmation of sale under sub-rule (1) of Rule 92 of Order 21, Civil P. C. The sale of immovable property was held in execution of an ex parte decree in the above case. At the same time when the confirmation of that sale was sought for an objection was raised to the confirmation on the ground that the very decree pursuant to the execution of which the sale was effected, was set aside, and as such, the Court should not confirm the sale,. In that context, we find the Supreme Court explicating the policy of the Legislature embodied in sub-rule (1) of Rule 92 of Order 21, Civil P. C. A canon of construction is indicated in the decision of the Supreme Court, firstly, in saving that there is nothing either in Rule 92, or for that matter, in the Code of Civil Procedure, to show that the sale should not be confirmed if the decree, pursuant to which the sale was held, was subsequently set aside and that policy as spelled out by the Supreme Court from the provisions contained in sub-rule (1) of Rule 92 of Order 21, Civil P. C. Concludes the matter in issue in the instant case. The policy of the Legislature is that unless a stranger auction-purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. Their Lordships of the Supreme Court have occasion also to refer to the provisions providing for the protection of the interests of the judgment-debtor, who feels that the decree ought not to have been passed against him and incidentally, their Lordships made a reference to the judgment-debtor's not availing himself of the remedy available to him under Rule 89 of Order 21, Civil P. C. If the purpose oriented interpretation of the statute as came to be laid by the Supreme Court, in the abovesaid case, has to be applied to the facts of the present case, what follows in that in the absence of there being any provision , requiring the auction-purchaser to bring the legal representatives of the judgment-debtor, who dies after the date of the sale but before the confirmation, on record, and where the specific conditions stipulated in sub-rule (1) of R. 92 are found to have been compiled with, in the sense , so far as the facts of the present case are concerned, that application made by the judgment-debtor under Rules 89 and 91 of Order 21, were disallowed, and in view of the observation of the Supreme Court to the effect that, under these circumstances, the Court has no choice in the matter of confirming the sale, and that sale must be made absolute. I am of the opinion that the confirmation in this case, as made by the Court on November 20, 1961, is quite consistent with provisions contained in sub-rule (1) of Rule 92 of Order 21 of the Code of Civil Procedure, and the same is perfectly valid and not being hit by any of the infirmities.
50. In the case of Hukumchand v. Bansi Lal, : 3SCR695 Wanchoo, C. J. Speaking for the Court, referring to the scope and the ambit of sub-rule (1) of Rule 92 of Order 21, of the Code of Civil Procedure, observed at page 35 of the Report thus :
'That provision makes it absolutely clear that if no application is made under Rule 89, Rule 90 or Rule 92 or where such application is made and disallowed, the Court has to make an order confirming the sale and thereupon the sale becomes absolute............. what O. 21 R. 92 contemplates is that where conditions thereunder are satisfied, an order for confirmation must follow . '
It is submitted on either side, that in the present case, the conditions contemplated under sub-rule (1) of Rule 92 of Order 21, C. P. C. are complied with in the sense that applications filed by the judgment-debtor under Rule 89 and Rule 90 were disallowed in which eventuality, according to the above observation of their Lordships of the Supreme Court confirmation shall have to follow. No circumstances, other than those that were contemplated under the aforesaid rule, need be adhered to. The circumstance of bringing the legal representatives of the judgment-debtor, who died subsequent to the sale but before the confirmation of the sale, is not one contemplated under sub-rule (1) of Rule 92 of Order 21, Civil P. C.
51. The case of Radhi v. Buta Mal, AIR 1929 Lah 618, decided by the High Court of Lahore, was referred to by the Learned counsel for the proposition that an unsuccessful applicant to have the sale set aside under Rule 90, even if he is not a party to the suit or to the execution proceedings is debarred from bringing a suit by Rule 92 (3).
52. As against the aforesaid decisions, the learned counsel appearing for the respondents drew my attention to certain cases governing a situation obtaining not subsequent to the sale being effected but before then, and as such they are not applicable and are distinguishable from the facts of the present case.
53. Reliance was placed by the learned counsel appearing for the respondents upon a decision of the Madras High Court in Raghunath Sami v. Gopauj Rao, AIR 1922 Mad 307. That was a case where the sale held in contravention of the provisions of Section 50, Civil P. C. Was held to be a nullity. In that case in execution of a decree, in which the puisne mortgagee consented for sale, free of his mortgage on the condition that the balance be paid to him after the discharge of the prior mortgage, subsequent to the order for sale but prior to the sale itself puisne mortgagee died and his legal representative was not brought on the record and the sale was held and confirmed. Under those circumstances the Court held that as the procedure laid down by Section 50 Civil P. C. had not been followed the sale was nullity and does not require to be set aside under Art. 166 of the Limitation Act, 1908.
54. M. B. Rama Sarma, learned counsel appearing for the appellant submitted that the cases governing the situation obtaining prior to the sale being held are clearly distinguishable from the case on hand, which was a case where the sale was held and the confirmation also was made. There is considerable force in that contention of the learned counsel and I find that this decision has no application to the facts of the present case.
55. The next case relied upon is a Full Bench decision of the Madras High Court in Kanchamalai v. Shahaji Rajah, AIR 1936 Mad 205 ( FB ). That was again a case arising under the provisions contained in Section 50, Civil P.C. As per Section 50, Civil P. C. where a judgment-debtor dies before a decree has been fully satisfied, the holder of the decree has been given a right to apply to the Court, which passed it to execute the same against the legal representatives of the deceased. The learned counsel for the appellant submits that we are not concerned with the applicability of Section 50, Civil P. C. Section 50 is only an enabling provision conferring the right upon the holder of a decree, if he is desirous of executing the decree against the legal representatives of the deceased, on the death of the judgment-debtor, to apply to have the legal representatives of the deceased to be brought on record. But the situation present in our case has absolutely no parallel to the one contemplated under Section 50, Civil P. C. The appellant does not want to proceed against the judgment-debtor, nor for that matter, against legal representatives of the deceased judgment-debtor, nor the remedy he is claiming is one contemplated under Section 50, Civil P. C. so as to have the same applied to the facts of this case, and therefore I am in agreement with the contention raised by the learned counsel for the appellant that this case has no application to the facts of the present case.
56. The other cases cited by the learned counsel appearing for the respondents were decided on the language employed in Section 50, Civil P. C. For the reasons already stated, the decisions relied upon are clearly distinguishable and as such there is no need to make any reference to the same. Even so the learned counsel persists in arguing that the principle underlying Section 50, Civil P. C. should be allowed to pervade the proceedings contemplated under sub-rule (1) of Rule 92 of Order 21, Civil P. C. and the learned counsel stresses that the situation existed at the time of the institution of the suit viz., the presence of the defendant shall have to be continued to exist even under sub-r. (1) of Rule 92 of Order 21, Civil P. C. There are misconception as to the extension of the principle underlying Sec. 50, Civil P. C. to a situation obtaining under sub-rule (1) of Rule 92 of Order 21, Civil P. C. Till the decree is passed the defendant is given enough of opportunity to answer the claim made by the plaintiff against him. Subsequent to the passing of the decree and when the decree is sought to be put in execution and actually put in execution certain remedies are provided to the judgment-debtor under Rules 89 and 90 of the Civil P. C. to have the sale of immovable properties held in execution of the decree set aside. When once application under those two Rules viz. 89 and 90 has been filed to be not maintainable and disallowed, the remedies open to the judgment-debtor must be taken to have been exhausted either by him or for that matter by the legal representatives. The theory underlying the representation also must be taken to have had no application to the situation obtaining under sub-rule (1) of R. 92 of O. 21, Civil P. C. and as such I find there is no force in the contentions put forward on behalf of the respondent to the effect that principle underlying the representation must be carried into the situation contemplated under sub-rule (1) of Rule 92 of Order 21, Civil P. C.
57. Reliance was placed by the learned counsel appearing for the appellant on a decision of the Madras High Court in the case of Vyaravan v. Ravalu Ayyar & Co. : AIR1951Mad844 , for the proposition that the auction purchaser in a Court auction sale becomes the owner of the properties on the date of the sale. We may notice I this connection, the language employed in Section 65 of the Civil P. C. is to the effect that when any immovable property is sold in execution of a decree and such a sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. In our case it is admitted that the sale held on 18-6-1956, is valid. That is not disputed. But what was disputed was that the confirmation made on 20-11-1961 was bad. But in view of my finding to the effect that the confirmation is not bad, it is manifest that both the sale as well as the confirmation are valid in law. If they are valid in law, the suit as brought is not maintainable in law.
58. According to the plaint allegations, the suit was instituted on 16-4-1962. The auction purchaser got possession of the property on 19-2-1962. The sale was held on 18-6-1956. The applications under Order 21 Rule 90, Civil P. C. and under Order 21 Rule 89 filed by the judgment-debtor were disallowed and the sale was confirmed on 20-11-1961 Within 30 days after the date of the sale, it can be set aside, under sub-rule (2) of Order 21 Civil P. C.
59. The case of the plaintiff as put forward by her in the plaint is that she was in possession of plant schedule properties, though in the evidence it is put forth that she was dispossessed. But the auction purchaser has been found to be in possession in question.
60. So far as the point of limitation is concerned in view of the fact that it is found that the confirmation of the sale, as well as the sale are found to be valid and according to Section 65 C. P. C. the vesting is deemed to have taken place at the time when the sale was effected but not at the time when the sale became absolute, and the sale in the present case was effected on 18-6-1956 and in view of Ex. B-9 dated 19-2-1962, a delivery receipt by virtue of which the appellant is found to be in possession of the property. I find no case is made out attracting Art. 142 of the Limitation Act. In view of the aforesaid finding of mine no other points arise for consideration.
61. For the foregoing reasons I am satisfied that the decree and judgment of the Court below shall have to be set aside and they are accordingly set aside and the suit is dismissed. The appeal is therefore, allowed with costs. As the suit was instituted in forma pauperis the court-fee shall have to be paid by the plaintiff.
62. Appeal allowed.