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Gulzari Lal Vs. Sheo Charan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All889
AppellantGulzari Lal
RespondentSheo Charan Lal and ors.
Cases ReferredKashi Ram v. Hashmat Banoo
Excerpt:
- interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - 804. in that case the property had been sold in september 1907, and the sale was first set aside in that very month, though in appeal later on the sale was accepted and confirmed under a compromise in 1909. the rights had therefore been acquired by the auction-purchaser by the sale in 1907 and under section 6(c), imperial general clauses (act 10 of 1897), the provisions of the old act might well have been considered to be still applicable. 6. but in view of the provision of section 104(2), no second appeal lay to the high court and the judge was perfectly right in declining to entertain the appeal......after a sale has taken place, it can be set aside on an application made either under rule 89, or rule 90 or rule 91. but where no application under either of these rules is made or is made and has been disallowed, the court under rule 92 makes an order confirming the sale and thereupon the isale becomes absolute. if however such an application is allowed then the sale is set aside. the order is final and no suit to set aside the order made under that rule can be brought by any person against whom such order is made. rule 93 then provides that where a sale of immovable property is set aside, the purchaser shall be entitled to an order for payment of his purchase money with or without interest. but the right to recover this purchase money arises only when the sale is set aside under rule.....
Judgment:

1. This purports to be a Letters Patent appeal from an order of a Judge of this Court dismissing what had been styled by the appellant an execution second appeal which the learned Judge thought should have been headed as a second appeal from order. It appears that the decree-holder held a simple mortgage decree against certain judgment-debtors and attached some property alleging that it belonged to his judgment-debtors. This property was put up for sale and was purchased at auction by the contesting respondents. No application for setting aside the sale was made within 30 days by the auction-purchaser with the result that the sale was ultimately confirmed by the Court. Subsequently a third party brought a suit for a declaration that the property which had been attached and put up for sale had not belonged to the judgment-debtors at all but is his own property. To this the auction-purchaser was made a party. The suit was decreed and it was held that the property had not belonged to the judgment-debtors at all.

2. Upon this the auction-purchaser filed an application purporting to be under Order 21, Rule 91, Civil P.C., to the Execution Court asking for the sale to be set aside on the ground that the judgment-debtors had no saleable interest at all and for a refund of the purchase money paid by them. The first Court dismissed the application holding that an application under Rule 91 could lie only before the confirmation of the sale and that after the confirmation of the sale, it was not maintainable and further holding that the application was barred by time.

3. On appeal the District Judge has allowed the application. In his opinion an application under Order 21, Rule 91, could be filed even after the confirmation of the sale and the proper article applicable was 181 and not 166 of the Limitation Act. He has relied on the authority of Gopal Saran Narain Singh v. Muhammad Ahsan (1910) 6 I.C. 804. In that case the property had been sold in September 1907, and the sale was first set aside in that very month, though in appeal later on the sale was accepted and confirmed under a compromise in 1909. The rights had therefore been acquired by the auction-purchaser by the sale in 1907 and under Section 6(c), Imperial General Clauses (Act 10 of 1897), the provisions of the old Act might well have been considered to be still applicable. On the other hand, in Muthukumaraswami Pillai v. Thevan 1927 Mad. 394, it has been held that an application for setting aside a sale made more than 30 days after the sale was barred by. Article 166, Limitation Act, and further that no application under Rule 91 could be made after the confirmation of the sale.

4. It seems to us that the scheme of Order 21, Rules 82 to 96 is that after a sale has taken place, it can be set aside on an application made either under Rule 89, or Rule 90 or Rule 91. But where no application under either of these Rules is made or is made and has been disallowed, the Court under Rule 92 makes an order confirming the sale and thereupon the isale becomes absolute. If however such an application is allowed then the sale is set aside. The order is final and no suit to set aside the order made under that rule can be brought by any person against whom such order is made. Rule 93 then provides that where a sale of immovable property is set aside, the purchaser shall be entitled to an order for payment of his purchase money with or without interest. But the right to recover this purchase money arises only when the sale is set aside under Rule 92. An application for setting aside a sale on the ground that the judgment-debtor had no saleable interest in the property made under Rule 91 has to he disposed of under Rule 92, but once an order confirming the sale has been made by the execution Court the question no longer is as to the setting aside of the sale. It has already been confirmed and the sale has become absolute. There is no provision under Order 21, which would entitle an auction-purchaser to re-open the question whether the sale should or should not be set aside, ignoring the order confirming the sale which would stand in his way unless it is reviewed or set aside in appeal. It would seem to follow that the auction-purchaser has got the ordinary period of 30 days allowed by Article 166, Limitation Act, to make enquiries and satisfy himself whether the judgment-debtor had any saleable interest in the property at all. But once the confirmation has been made, he can neither bring a separate suit to challenge the order, nor have it set aside on discovery of a defect in the title of the judgment-debtor. Of course, where a case of fraud or misrepresentation, etc., is made out it may be open to him to apply for review of the order or seek relief by a separate suit. That is not the case here.

5. It also seems to us that Article 166 in terms applies to such an application and would govern all applications made under the Civil Procedure Code to set aside a sale in execution of a decree. This Article was applied by a Bench, of which one of us was a member in Kashi Ram v. Hashmat Banoo 1931 All 145 to an application to set aside a sale on the ground that no notice under Order 21, Rule 22, had been received. Article 181 is the residuary Article and cannot apply when there is a specific Article which is applicable. Applications under Rule 91 therefore must be made within 30 days of the sale which necessarily implies that it must be made before the sale is confirmed. We therefore agree with the view expressed by the Judge of this Court that the lower appellate Court was wrong in applying Order 21, Rule 91, to the case.

6. But in view of the provision of Section 104(2), no second appeal lay to the High Court and the Judge was perfectly right in declining to entertain the appeal. The only other section under which he could act was Section 115, Civil P.C. The Judge had that section in his mind and in view of the fact that the decree-holder himself had got the property attached and put it up for sale declined the exercise of his discretion in favour of the decree-holder. No appeal lies from an order passed by the Judge under Section 115, Civil P.C. We accordingly dismiss this appeal with costs.


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