Skip to content


Harbans Lal Vs. Ram Jawai Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberF.A.O. (O.S.) No. 69 of 1978
Judge
Reported inAIR1979Delhi230; 16(1979)DLT109
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 58 (2), 90 and 92(1) - Order 43, Rule 1; ;Delhi High Court Act, 1966 - Sections 10
AppellantHarbans Lal
RespondentRam Jawai Devi and ors.
Cases ReferredSint. Shanta Sabharwal v. Sint. Sushila Sabharwal
Excerpt:
.....10 of the delhi high court act, 1966 b) the case debated on the application to set aside the sale - the initial application was dismissed - the next application was as per proviso to rule 92(1) of order 21 of the civil procedure code, 1908 - it was held that later application would not lie new: - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband..........the suit property in an auction for rs.54,000/- in dec. 1964, in the execution of a decree in a suit filed by one jatinder prakash against bhag mal jain, bhag mal jain (who is now succeeded by his legal representatives, respondents 9 to 14 in the present appeal) the debtor in the said suit had mortgaged the suit property to one bal kishan das (whose legal representatives are respondents 1 to 8 in the present appeal). in jan. 1966, a sale certificate was issued in the name of the appellant. the appellant did not take any steps to redeem the suit property from bal kishan dass. in the meanwhile, in the mortgage suit between bhag mal jain and bal kishan dass, a preliminary decree was passed in favor of bal kishan dass which was converted into a final decree on 12-8-1971 after the final.....
Judgment:

Wad, J.

1. The question for the decision in this appeal, as a preliminary question, is whether the order of the learned single Judge of this court (Sultan Singh, J.) rejecting the appellant's application made under the proviso to sub-r. (1) of R. 92 of O. 21, C. P.C. is appealable under O. 43, R. 1 (j) of the Code. R. I and said Proviso run as follows:-

92. (1) 'Where no application is made under R. 89, R. 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.

Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to or any objection to the attachment of such property, the court shall not confirm such sale until the final disposal of such claim or objection.'

2. The proviso was added to R. 1 by Act 104 of 1976. The question of appealability would depend upon the true construction and effect of the said proviso.

3. The question of law stated above arose in the following circumstances:-

The present appellant purchased the suit property in an auction for Rs.54,000/- in Dec. 1964, in the execution of a decree in a suit filed by one Jatinder Prakash against Bhag Mal Jain, Bhag Mal Jain (who is now succeeded by his legal representatives, respondents 9 to 14 in the present appeal) the debtor in the said suit had mortgaged the suit property to one Bal Kishan Das (whose legal representatives are respondents 1 to 8 in the present appeal). In Jan. 1966, a sale certificate was issued in the name of the appellant. The appellant did not take any steps to redeem the suit property from Bal Kishan Dass. In the meanwhile, in the mortgage suit between Bhag Mal Jain and Bal Kishan Dass, a preliminary decree was passed in favor of Bal Kishan Dass which was converted into a final decree on 12-8-1971 After the final decree was passed, the appellant filed civil suit on 15-11-1971 for declaration and injunction alleging that the final decree in favor of Bal Kishan Dass was obtained by fraud and collusion between the parties. The said suit is still pending. In pursuance of the decree passed in favor of Bal Kishan Dass, the suit property was put to auction and M/s. Delhi Packing Private Limited purchased the suit property for Rs.1.40 lacs. On 4-9-1978 the appellant and one Vidya Sagar filed objections to the confirmation of sale in favor of M/s. Delhi Packing Private Limited under 0. Xxi R. 90 of the C. P. C. The said application was rejected and the sale was confirmed by Kapur. J. of this High Court. F. A. 0. (OS) No. 39 of 1978 was filed against the said order of Kapur, J. by the appellant which is admitted and pending disposal in this court. However, no stay was granted in favor of the appellant. Contrary to his earlier case, the appellant filed another civil suit on 22-111978 for the redemption of mortgage of the suit property. M/s. Delhi Packing Private Limited the auction purchaser is not a party to either of the suits filed by the appellant. But before filing the suit for redemption the appellant filed an objection bearing 1. A. No. 3474/78 under the proviso to sub-rule (1) of Rule 92 of Order XXI. The Auction Purchaser M/s. Delhi Packing Private Limited also filed an application D. A. No. 3627/78 for the confirmation of sale in its favor. On these facts the learned single Judge held that although the appellant's application (I. A. No. 3474/78) is purported to be made under the proviso to sub-r. (1) of R. 92 of 0. Xxi, the said proviso was not applicable to the facts and circumstances of the present case. The learned Judge also noted that the earlier application filed by the appellant under Order Xxi, Rule 90 was rejected by the Single Judge of this court and the appeal taken against the said rejection by the appellant is still pending disposal in this court. Sultan Singh, J. by his order dated 24-11-1978 thus rejected the appellant's application and granted the application of M/s. Delhi Packing Private Limited for confirmation of sale. Against this order of Sultan Singh, J. the present appeal is filed.

4-5. The learned counsel for the appellant contended that the true effect and necessary consequence of the impugned order is 'refusing to set aside a sale' within the meaning of Order Xliii R. I (j) and hence the appeal was maintainable. He contended, in the alternative, that the appeal was maintainable under S. 10 of the Delhi High Court Act. The learned counsel for the appellant fairly conceded that there was no direct authority on the proviso in question. He cited at the bar several decisions of the Supreme Court and the High Courts to the effect that order of confirmation is a necessary corollary of an order refusing to set aside a sale. The learned counsel for the respondent on the other hand, contended that an order passed on an application under the proviso in question is neither an order setting aside the sale nor an order refusing to set aside the sale within the meaning of O. Xliii R. 1 (j). The learned counsel further contended that in any case since the appellant's application under O. Xxi Rule 90 has already been once rejected by this court, the second application challenging the confirmation of sale is not tenable in law. In support of the second contention the learned counsel for the respondent relied upon (1939) 43 Cal Wn 352 and and 1964 Ker Lt 720. We are inclined to uphold the respondent's objections to the maintainability of the present appeal.

6. As stated earlier the proviso to sub-r. (1) of R. 92 of O. 21 has come up as an amendment for the first time in Feb. 1977 when the amending Act camel into operation. The plain reading of the! proviso makes it clear that the object off the proviso is to enjoin the courts a duty of not confirming a sale where the attachment is under objections till such' objections are finally disposed of by a competent court. If the confirmation is made when the attachment itself is challenged, legal complications may arise resulting in multiplicity of proceedings.1 The legislature has, thereforee, stepped in, to ensure that no final decision in regard to confirmation of a sale is taken by a court where the objections to the attachment are pending. The legislature certainly did not intend any final or conclusive order (of confirmation or non-confirmation of a sale) under the proviso in question. Since the proviso has recently been added, we tried to trace the legislative history of the proviso. Unfortunately, neither the Law Commission Re-1 port (Fifty-fourth Report) on the Civil P. C. 1908, nor the report of the Select Committee of the Parliament throw any light on the said proviso. The terminology employed in the proviso is, however, similar to the terminology of R. 58 (2) of 0. XXI. Rule 58 of Order Xxi ha undergone a vital change by the amending Act 104 of 1976. The amendment now envisages that the adjudication under R. 58 would be final and conclusive ad judication, and would be appealable as it were a decree. In contrast, an order under the proviso to sub-rule (1) R. 92 of 0. 21 is only an interim order. It is not necessary to discuss the authorities cited at the bar by the learned counsel for the appellant since they have no direct bearing on the proviso 'in question. The Civil P. C. was extensively amended by Act 104 of 1976, one of the objects of which was to reduce delays of disposal of the cases in the courts. With that end in view, cls. (b), (e), (g), (h), (m) (o) and (v) are deleted from R. 1 of 0. Xliii abolishing appeals in certain cases. Although the proviso in question has been added by the new amendment, there is no consequential amendment, to clause (i) in R. 1 of O. XLIII. We cannot presume, that when the legislature was abolishing a right to appeal in certain cases with the said object in view, it intended to create a new right of appeal and that too in case of interim orders. We, thereforee, reject the appellant's contention and uphold the respondent's preliminary objection.

7. We are in respectful agreement with the Division Bench of Calcutta High Court and Kerala High Court (1939) 43 Cal Wn 352 and 1964 Ker Lt 720 and hold that once an application to set aside a sale is made, a second application against the confirmation of sale is not maintainable. On this ground also the appeal is not maintainable against the impugned order.

8. The question whether an appeal would lie under S. 10 of the Delhi High Court Act is concluded by the decision of a bench of five Judges of this court in University of Delhi v. Hafiz Mohd. Said 2nd (1972) 2 Del 1 . The said decision has been re-affirmed by the Division Bench consisting of Deshpande, C. J. and Goswarny, J. in Sint. Shanta Sabharwal v. Sint. Sushila Sabharwal (F. A. 0. (OS) No. 33 of 1973 : AIR1979Delhi153 . The Division Bench has given some additional reasons in support of the ratio of the University of Delhi case and has also held that there was no necessity of reconsideration of the decision of five judges' bench in University of Delhi.

9. For the reasons stated above, we dismiss the appeal as not maintainable. In view of the fact that the questions stated above have come up for decision f or the first time, we do not make any order as to costs.

10. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //