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State Bank of Travancore Vs. Mytheen Kannu Mastan Kanju - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 922 of 1978-B
Judge
Reported inAIR1980Ker236
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 90 and 92
AppellantState Bank of Travancore
RespondentMytheen Kannu Mastan Kanju
Appellant Advocate K.C. John,; George Varghese and; K.K. John, Advs.
Respondent Advocate V. Vyasan Poti and; N. Sugathan, Advs.
DispositionPetition allowed
Cases ReferredKunjukrishnan v. Viswanathan
Excerpt:
.....(air 1953 mad 587). we are of the view that that decision states the principle correctly in terms of order xxi, rule 92. order xxi, rule 92 clearly provides that when an application to set aside the sale is dismissed the court shall make an order confirming the sale and thereupon the sale shall become absolute......of confirmation will revive the moment a fresh order rejecting the application to set aside the sale is passed subsequently. the reason is stated thus at page 452 :--'it was contended that once the application under order xxi, rule 90 was restored in appeal and the case was remanded, the prior confirmation of the sale stood automatically vacated, and without a fresh order of confirmation following the dismissal of the application under order xxi, rule 90, the sale could not become absolute. reliance was placed on the decision of the madras high court in varadarajan v. venkatapathi, (air 1953 madras 587) in which the view was taken, that on the application under order xxi, rule 90 being allowed or restored to file, the prior confirmation automatically stood vacated. if in the case.....
Judgment:

Viswanatha Iyer, J.

1. The decree-holder is the revision petitioner. A decree for money was obtained by the petitioner's predecessor on 16-3-1956. The property of the judgment-debtor was sold in court-auction on 21-2-1968. On 6-3-1968 the petitioner produced the necessary amount for the stamp duty leviable on the purchase certificate. On 16-3-1968 the judgment-debtor filed an application under Order XXI, Rule 90, C. P. C. to set aside the same. That application was dismissed on 4-11-1969 and the sale was confirmed. The judgment-debtor applied on 24-11-1969 to restore that application, but that application also was dismissed on 9-3-1970. Before this the judgment-debtor had filed an appeal against the order dated 1-11-1969 as A. Section 6 of 1970. The appellate court allowed that appeal, set aside the order of the lower court and sent back the application filed under Order XXI, Rule 90 for fresh consideration and disposal. On remand that application was posted for consideration and the executing court again dismissed the same on 7-11-1970. But no fresh order of confirmation of sale was passed. It may be noted that before the dismissal of the application Agricultural Debt Relief Act -- Act 11 of 1970 -- came into force on 14-7-1970. That enabled the debtors whose properties have been sold but their sale not confirmed to apply to set aside the sale. The judgment-debtor availed of that provision, namely, Section 20 Clause (8) of the Act and filed an application on 13-1-1971 to set aside the sale. He also deposited Rs. 200/- as the first instalment. For reasons best known to the debtor that application was not pressed and so the same was dismissed on 3-11-1973. On 17-12-1973 the decree-holder auction-purchaser applied for delivery of the property. He was called upon to produce the sale certificate. Then he applied to have the sale certificate issued assuming that the sale has already been confirmed. The executing court also did not notice that after dismissing on 7-11-1970 the application under Order XXI, Rule 90 there is no order confirming the sale. The court only ordered the auction-purchaser to produce the necessary amount to purchase the stamp paper to prepare the sale certificate. Then the decree-holder realised that there has not been a fresh order of confirmation of the sale and so he filed an application claiming two alternative reliefs. One relief is that he may be allowed to execute the decree for recovery of the decree debt over again if the sale is for any reason deemed as set aside by the filing of the application under Section 20 (8) of Act 11 of 1970 by the debtor. Alternatively he contended that an order of confirmation of the sale may be passed to enable him to get the sale certificate. The lower court has by the order under revision dismissed the same. This is challeged in this revision petition.

2. The lower court is right in not permitting the decree-holder to execute the decree over again because once the sale is held in satisfaction of the decree unless that sale is set aside the sale cannot be ignored and steps taken to execute the decree over again. The application to set aside the sale under O. XXI, Rule 90 has been dismissed. The application filed under Section 20 Clause (8) of Act 11 of 1970 has also been dismissed on 3-11-1973. Therefore the sale held on 21-2-1968 remains in force and the decree-holder is therefore not entitled to execute the decree over again .

3. But the decree-holder is entitled to get the alternate relief. It is true that the application to set aside the sale filed under Order XXI, Rule 90 was at the first instance dismissed on 4-11-1969 and the sale was confirmed by a separate order passed on the same day. But the order passed on the application to set aside the sale was reversed in Appeal A. S. 6 of 1970 and the case sent back for re-consideration of that application. With this the order confirming the sale automatically ceases to have any effect. When for the second time the application to set aside the sale was dismissed on 7-11-1970 the court should pass fresh order confirming the sale. This is clear from the provisions of Order XXI, Rule 92, C. P. C. Rule 92 (1) reads as follows:--

'92. Sale when to become absolute or be set aside.-

(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;

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.'

In this case admittedly such an order has not been passed on 7-11-1970 or thereafter. But the respondent's counsel relies on a single Bench decision of this Court in Kunjukrishnan v. Viswanathan, (1964 Ker LT 449) : (AIR 1964 Ker 314) paragraph 4. In that case on similar facts a view was taken that the earlier order of confirmation will revive the moment a fresh order rejecting the application to set aside the sale is passed subsequently. The reason is stated thus at page 452 :--

'It was contended that once the application under Order XXI, Rule 90 was restored in appeal and the case was remanded, the prior confirmation of the sale stood automatically vacated, and without a fresh order of confirmation following the dismissal of the application under Order XXI, Rule 90, the sale could not become absolute. Reliance was placed on the decision of the Madras High Court in Varadarajan v. Venkatapathi, (AIR 1953 Madras 587) in which the view was taken, that on the application under Order XXI, Rule 90 being allowed or restored to file, the prior confirmation automatically stood vacated. If in the case noticed the order of the appellate court restoring the application was taken on further appeal and the order of the appellate court was reversed and the application was dismissed, certainly the earlier confirmation would stand revived. There is no doubt a distinction in the exercise of the appellate power, but I do not see why in the absence of compelling authority the principle of revivor should not apply to a case like the present where after restoration of the application it was again dismissed. It is needless to go through the meaningless formality of passing a fresh order of confirmation. The principle of revivor would serve also to advance the interests of justice. I, therefore, come to the conclusion that the original order of confirmation even if it was automatically vacated on the passing of the appellate order stood revived, and the sale became absolute.'

With greatest respect to the learned single Judge we are of the view that this is not correct. When once the application to set aside the sale is restored the confirmation made earlier would stand automatically vacated and we are supported in this conclusion by the decision of the Privy Council in Shama Purshad v. Hurro Purshad, (1863-66) 10 Moo Ind App 203 (PC) where it was held that orders and decrees which are subordinate and dependent upon earlier orders and decrees could remain in force only as long as the order or decree on which they were dependent are not reversed or suspended. When the decrees or judgment on which they depend are reversed they could not continue to remain in force. On this principle when the application to set aside the sale was restored to file by the decision in appeal A. S. 6 of 1970 the earlier confirmation automatically got vacated. When again that application is dismissed a fresh order of confirmation has to be passed. We are supported in this by a Bench decision of the Madras High Court in Varadaraj v. Venkatapathi, (AIR 1953 Mad 587). We are of the view that that decision states the principle correctly in terms of Order XXI, Rule 92. Order XXI, Rule 92 clearly provides that when an application to set aside the sale is dismissed the court shall make an order confirming the sale and thereupon the sale shall become absolute.

It follows that the order of the lower court based on the above decision in Kunjukrishnan v. Viswanathan, (1964 Ker LT 449): (AIR 1964 Ker 314) canot stand. The revision petition is hence allowed, the order passed by the lower court is set aside and the sale held on 21-2-1968 is confirmed. In the circumstances of this case there will be no order as to costs.


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