(1) This is an appeal of the judgment-debtor whose objections with regard to the sale of this house for a sum of Rs. 5,100/- in favour of the respondent auction-purchaser have been dismissed by the exercising Court and also in appeal by the Senior Subordinate Judge, Jullundur.
(2) The facts on which there is no dispute are these. A decree against the appellant Gurdial Singh for a sum f Rs. 519/- was passed ex parte on 27th of February, 1961 in favour of Sawaran Singh and another. Sawaran Singh decree-holder was not slow in execution of this decree and a warrant for attachment of the Judgment-debtors house was issued on 10th of May, 1961. This house was sold in auction for Rs. 5,100/- in favour of Shri Janak Raj respondent 2 on 16/12/1961. The judgment-debtor applied on 2nd of January, 1962. for setting aside the ex parte decree. He also preferred objections on 20th of January, 1962 making allegations that the house sold for Rs. 5,100/ was of the value of Rs. 25,000/- the auction was not preceded by proper publication that an application has been made to set aside the ex parte decreeing execution of which the sale has taken place. The provision of the Code under which this application was made is not mentioned but it has always been treated as an application under rule 90 of Order 21 of the Code of Civil Procedure. The order staying the confirmation of sale was passed on 19th of April, 1962.
Subsequently, the application made on 2nd of January, 1962, was accepted and the ex parte decree against the judgment-debtor was set aside on 26th of October, 1962. The auction-purchaser thereafter promptly moved for 'revival of the execution file' and prayed in his application of 3rd of November, 1962 to have the sale made on the 16th of December, 1961, confirmed under rule 92 of Order 21 of the Code of Civil Procedure. In reply to this application having been set aside the sale which had been made in execution of it became a nullity. The only issue framed by the execution Court is top this effect:
'What is the effect of setting aside the ex parte decree on the rights of the auction-purchaser?'
(2a) The execution Court by it order of 31st of August, 1963, accepted the application of the auction-purchaser for revival of the execution proceedings and by the same order holding that the objections filed by the judgment-debtor under Order 21, rule 90 were barred by time confirmed the auction sale under the provisions of rule 92 of Order 21. The judgment-debtor having failed before the lower appellate Court has come against to this Court in future appeal.
(3) It has been contended by Mr. Wasu, the learned counsel for the appellant that auction sale held on 16th of December 1961 could not have been confirmed by the Court on 31st of August 1963 at the instance of the auction-purchaser as the ex parte decree for the satisfaction of which the sale had taken placed had been set aside on 26th of October, this situation and indeed it was after the ex parte decree had been set aside the applied for it s confirmation though in the form of 'revival of the execution file' on 3rd November 1962. both the then that once the objections preferred against an auction sale are dismissed under rules 89 90 or 91 or Order 21 Code of Civil Procedure the Court sale and thereupon the sale shall become absolute. ' The Civil Procedure that ' a plaintiff whose suit has been dismissed a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit ' for purposes of this section has been held to he inapplicable to the proceedings for setting arise sale on ground of irregularity in the conduct of auction.
(4) The case for the appellant is founded on the proposition which is indisputable that there can be no sale in execution of a decree which has ceased to exist. Reference may be made to a Division Bench authority of Sir Franchise William Maclean Chief Justice and Banerjee J. in Doyamoyi Dasi v. Sarat Chander Mojumdar ILR 25 Cal 175 where it was observed by the Chief Justice that
'there was no decree existing in the suit and if there were no decree, it is difficult, to my mind, to see how there could be any sale which could be confirmed when the decree under which it was made had ceased to exist.'
Banerjee J assenting to this view which does not appear to have been contested observed thus in his short judgment:
'.... the Court ought not to confirm a sale when at the time such confirmation is asked for the decree had ceased to be a subsisting decree. In the present case the decree which was an ex parte decree had been set aside by an order.... '
(5) Section 47 of the Code makes it mandatory that
'all questions arising between the parties to the suit in which the decree was passed...... and relating to the execution discharge or satisfaction of the decree. ' shall be determined by the executing Court. The explanation inserted by Act No. 66 of 1956 settles the controversy to which it is no longer necessary to advert and makes it clear that the auction-purchaser is not stranger and like the judgment-debtor and the decree-holder is a party to the suit for purposes of this section. The application moved by the appellant judgment-debtor on 20th of January, 1962, has been treated on the footing of objections preferred against the auction sale. It is necessary to emphasis that the application itself does not purport to be made under the provision of Order 21 Rule 90 and indeed in paragraph 4 it is asserted that the proceedings had been taken to have the decree set aside the sale in execution could not therefore be binding. The confirmation of the sale which had taken place earlier had been stayed and the auction purchaser had been content to abide by this order.
Subsequently, when the auction-purchaser moved for the revival of the execution proceedings the Court in a composite order confirmed the sale simultaneously dismissing the application of the judgment-debtor of 20th of January, 1962, treating as objections under Order 21, rule 90. All that is said about these objections is that they are dismissed having been filed beyond the statutory period of limitation. Under Rule 90 a decree-holder or any person affected by the sale may apply to the Court to set it aside on ground of ' a material irregularity or fraud in publishing or conduction it. ' When such objections are dismissed the executing Court has automatically to confirm the sale under Rule 92. It seems plain to me that the application made by the judgment-debtor on 20th of January, 1962, cannot be regard as objection under Rule 90 as the sale was questioned not on the mere ground of irregularity or fraud in publishing or conduction it but a challenge was made to the ex parte decree on the basis of which sale was held.
The question substantially, in my opinion related one to execution discharge or satisfaction of the decree and could be determined under the provisions of section 47 and especially so when the auction-purchaser is not to be regarded as a party in the suit. There is a no question of the auction purchases in this case being a stranger as he had full knowledge of the debtor to have the ex parte decree set aside. The proceedings for confirmation of the sale had been stayed on motion of judgment-debtor and to the full knowledge of the auction-purchaser.
(6) Reliance has been placed by the learned counsel for the respondent-auction-purchaser, on the Privy Council decision of Nanhelal v. Umrao Singh AIR 1931 PC 33 where it was held by the Board that the confirmation of sale cannot be declined on the ground that the decree-holder and the judgment-debtor say that the decree has been satisfied out of Court. This authority of the Privy Council, in my opinion does not support he proposition that a sale has to be confirmed even when the decree has ceased to exist. It is true that there are authorities which say that the sale has to be confirmed under Rule 92 even where the decree has ceased to subsist. These decisions, however, all relate to a time before the amendment of section 47 which placed an auction-purchaser at par with the judgment-debtor and the decree-holder with regard to determinate of question with regard to nullity of sale.
Rule 89 to 92 of Order 21 relates to auction-sales in which the conduct of the auction is challenged and as observed by Tek Chand in the Full Bench authority of Gauri v. Ude, AIR 1942 Lah 153, the proceedings under section 47 and Order 21 Rule 90, are separate from each other though not completely independent of each other. Said Tek Chand J. at page 156:
'Under Order 21 Rule 90 a sale can be set aide only on the ground of a material irregularity or fraud in publishing or conduction it. It odes not cover any objections to the sale on the ground that the property in question was not liable to be sold under Section 60. the word 'conduction' has been used with reference to the proceeding of the officer conduction the sale and cannot be constructed so widely as to cover objection relating to salability of property.'
(7) The obligation of the Court to confirm a sale under rule 92 arises only where objections have been dismissed with regard to conduct of sales under rules 89 to 91 and not where the sale is attacked on the ground of nullity. The moment the judgment-debtor in the present case came to know about the sale he filed first an application on 2nd of January, 1962, to have the decree set aside and later on 20th of January, 1962, the consequential sale. The judgment-debtor truly speaking had challenged the validity and not merely the conduct of sale.
(8) It is strongly contended on behalf of the respondent-auction-purchaser that he bona fide sale had vested rights in the purchaser without notice and the aid of the basic principle of restitution embodied in section 144 of the Code could not be invoked in such cases. Reliance is placed on a Division Bench judgment of the Madras High Court (Veerswami and Ramamurti JJ. ) in Chokalingam Asari v. N. S. Krishna Iyer, AIR 1964 Mad 404, when it was said that:
'When a property is purchased in execution g of a decree by the decree-holder purchaser himself such property will be liable to an obligations or claim for restitution in the event of the decree under execution being reversed or set aside on appeal. But in the case of stranger auction-purchaser, the judgment-debtor is not allowed to obtain restitution of property. If the purchaser were to lose the benefit of his purchase on the contingency of the subsequent reversal of the decree there will be no inducement to the intending purchases to but at execution sale and consequent the property would not fetch its proper price at such sales and the net result would be that the judgment debtor would be the ultimate sufferer.'
This authority takes account of the old distinction between a stranger auction-purchaser and the decree-holder auction-purchaser a distinction which has ceased to exist by the amendment introduced in the explanation to section 47.
(9) I would, therefore, conclude that before the sale was confirmed the decree for the satisfaction of which it was held had been set aside to the knowledge of the auction-purchaser the confirmation of the sale having remained stayed to his knowledge at least from 19th of April, 1962, onwards. I am also of the view that section 47 of the Code of Civil Procedure is an appropriate provision of law of deal with the dispute which had been fairly raised between the judgment-debtor and the auction-purchaser. The execution Court was not bound therefore to confirm the sale under rule 92 of Order 21, Code of Civil Procedure. The ex parte decree having been set aside no execution sale could have taken place for its satisfaction.
(10) The appeal, therefore, must be allowed and the sale in favour of the auction-purchaser set aside. In the Circumstances, I would make no order as to costs.
(11) Appeal allowed.