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L. Rajan Vs. Muthusami Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 2570 of 1979
Judge
Reported inAIR1981Mad285
ActsCode of Civil Procedure (CPC), 1908 - 0rder 21, Rules 90, 91 and 92; Limitation Act, 1976 - Schedule - Article 127
AppellantL. Rajan
RespondentMuthusami Naidu and anr.
Cases ReferredVaradarajan v. Muthu Venkatapathi Reddi
Excerpt:
.....in favour of petitioner with reference to property purchased by him - application to set aside sale filed by petitioner within 60 days provided under article 127 - confirmation of sale made by court before expiry of period available to petitioner to take steps to set aside sale - confirmation cannot be put against petitioner and is ineffective to render court functus officio- petition allowed. - - 1176 of 1,975, and, there fore, the sale in favour of the petitioner was perfectly valid. it was also the further plea of the first respondent that it was the duty of the petitioner to satisfy himself with reference to the defects in the property and having failed to take such precautions, it was not open to the petitioner to seek to set aside the court sale. 166 of the indian..........empowered to make an order confirming the sale when no application has been made under order 21, rule 89,rule 90 or rule 91, civil procedure code ,or where such an, application has been made add is disallowed. it is in 'view of this rule which enables persons entitled to set aside a court auction, sale within the period prescribed for that purpose that the courts do not proceed confirm the sale immediately after the sale 'but usually post the confirmation which would be beyond the period of 60 days now provided under art. 127, of the indian limitation act. bui in the present case, the sale had been confirmed on 10-2-1977, long before the expiry the period within which an application to set aside the sale either under order 21,rule 90 or rule 9.1 c.p. code, can be filed. based on this.....
Judgment:
ORDER

1. This civil revision petition raises a question of limitation at the instance of the auction purchaser of an extent of about 0.05 1/2 cents in S. F. No. 663/1, Telungupalayam, within Coimbatore Municipality, in execution of the decree in 0. S. No. 1176 of 1975, District Munsif Court, Coimbatore in E. P. 118 of 1976. The first respondent is the decree holder and the second respondent is the judgment-debtor in 0. S. No. 1176 of 1975. In execution of the decree obtained by the first respondent against the second respondent, the property referred to earlier was brought to sale and in the auction held on 3-1-1977, the petitioner was the highest bidder for a sum of Rs. 5050 and deposited one-fourth of the sale amount on 3-1-1977, and the balance on 17-1-1977. On 10-2-1977, the sale in favour of the petitioner was also confirmed. There after, the petitioner found out that the same property was sold in another court auction previously in E.P.R. No. 2 of 1976 in 0. S. 435 of 1975 on 11-10-1976 pursuant to a decree obtained by one S. R. Appasami Chettiar against the second respondent herein and the property had also ,been purchased by one Panchanathan. According to the case of the petitioner, though the first respondent decree-holder knew about the previous sale, he fraudulently suppressed that and brought the property to sale as if the second respondent had a saleable interest therein and since the property had also been sold on 11-10-1976, the petitioner claimed that the sale in his favour was void and in 'operative and would not operate to convey any title. Therefore, the- petitioner filed E. A. No. 144 of 1977 on 17-2-1977 under 0. 21, Rules 91 and 92 (2), read with Ss. 47 and 151 C. P. Code, praying for a declaration that the court auction sale held on 3-1-1977 in E. P. No. 118 of 1976 is void, and if necessary, to set aside the sale and direct the refund of the entire amount deposited by the petitioner towards the court sale.

(*Against decree of Sub. J., Coimbatore in C.M.A. No.. 154 of 1978 etc).

2. That application was resisted by the first respondent herein, who contended that he did not assure that the second respondent judgment debtor had a saleable interest in the property and that the claim of the petitioner that there was an earlier sale of the same property in -E.P.R. No. 2 of 1976 in 0. S. No. 435 of 1975 was not correct. The first respondent reiterated that the second respondent had a saleable interest in the property at the time of the auction sale in E.R.P. No. 118 of 1976, pursuant to the decree in 0. S. No. 1176 of 1,975, and, there fore, the sale in favour of the petitioner was perfectly valid. It was also the further plea of the first respondent that it was the duty of the petitioner to satisfy himself with reference to the defects in the property and having failed to take such precautions, it was not open to the petitioner to seek to set aside the court sale.

3. The learned District Munsif, Coimbatore, who enquired into this application, held that the property purchased by the petitioner in the court auction sale held on 3-1-1977 in execution of the decree in E. P. No. 118 of 1976 in 0. S. No. 1176 of 1975 had already been sold in E.P.R. No. 2 of 1976 in 0. S. No. 435 of 1975 on 11-10-1976 and the sale had also been confirmed on 18-111976, and, therefore, the subsequent sale held on 3-1-1977 in E. P. No. 118 of 1976 would not operate to convey any title in favour of the petitioner with reference to the property purchased by him and on this finding set aside the auction sale held on 3-1-1977, and directed that the amounts deposited by the petitioner to purchase the property in court auction should be returned to him. In the result, E. A. No. 144 of 1977 filed by the petitioner was allowed. Aggrieved by this, the first respondent herein preferred an appeal. C.M.A. No. 154 of 1978 in Sub. Court, Coimbatore. The learned Subordinate judge held that as the property was sold in court auction in favour of the petitioner on 3-1-1977, and the sale was Also confirmed on 10-2-1977, the application to get aside do ode filed by the petitioner on 17-2-l977, after the expiry of 30 days from the date of sale, was barred under Art. 166 of the Indian Limitation Act. On this conclusion the appeal was allowed and E. A- No. 144 of .1977 filed by the petitioner was dismissed . It is the correctness of this order that is challenged in this revision petition.

4. The learned counsel for the petitioner submits that the court below was in error in holding that the application was barred under Art. 166 of the Indian Limitation Act and points out that the court below had completely failed to take note that under Art. 127 of the Indian Limitation Act, 1963, a period of 60 days would be available from the date of sale to set aside a sale in execution of a decree and, therefore, the application filed on 17-2-1977 within 60 days from the date of sale on 3-f-1977, would be well within time. Further, according to the learned counsel for the petitioner S. 98 of Act 104 of 1976 which substituted the words 'sixty days' for the words 'thirty days' in Art. 127 of the Indian Limitation Act, 1963, came into force on 1-2-1977 as notified in the Gazette of India, dated 14-1-1977, and therefore, the application filed on 17-2-1977 to set aside the sale would be well in time. The Court below obviously did not notice either the provision in the Indian Limitation Act or S. 98 of Act 104 of 1976; as otherwise, it is not likely to have committed the mistake it did in stating that Art. 166 of the Indian Limitation Act with a period of 30 days would be appropriate Article applicable. The sale in the present case had been held on 3-1-1977 and Act 104 of 1976, which brought about the amendment extending the period of limitation for an application under Art. 127 of the Indian Limitation Act, having come into force on 1-2-1977, before the expiry of 30 days from 3-1-1977, the application filed by the petitioner to set aside the sale on 17-2-1977, was well within 60 days from the date of sale on 3-1-1977, and therefore, the court below was wrong in holding that the application filed by the petitioner was barred by time. Indeed, when the attention of the learned counsel for the first respondent was drawn to these aspects, he fairly admitted that the view taken 17y the court below on the question of limitation is unsustainable.

5. However, the learned counsel for the first respondent would raise an objection that as the concern of the sale in this case had taken place on '10-2-1977, the, court there after because functus officio and, therefore, was not competent, to deal with the application filed by the pensioner on 17-2-1977, to set aside the sale. On the other hand, the learned counsel for the pensioner contends that court has purposed to confirm the sale before the expiry of the period provided for filing on an application under O.21,Rule 90 or Rule 91,C,P Code is no consequence and such confirmation is only a negotiable and defensible one this does not in any manner take away the jurist ion of the court to deal with an application of the nature filed by the petitioner. Under O. 21, Rule 92 C..P. Code ,the court is empowered to make an order confirming the sale when no application has been made under Order 21, Rule 89,Rule 90 or Rule 91, Civil Procedure Code ,or where such an, application has been made add is disallowed. It is in 'view of this rule which enables persons entitled to set aside a court auction, sale within the period prescribed for that purpose that the courts do not proceed confirm the sale immediately after the sale 'but usually post the confirmation which would be beyond the period of 60 days now provided under Art. 127, of the Indian Limitation Act. Bui in the present case, the sale had been confirmed on 10-2-1977, long before the expiry the period within which an application to set aside the sale either under Order 21,Rule 90 or Rule 9.1 C.P. Code, can be filed. Based on this fact of confirmation, the learned counsel for the first respondent urges that the moment the confirmation is effected, the, court ceases to have any seisn over the matter. It has been held that even when an application to set aside a sale under Order 21, Rule 90 C.P.C. is dismissed for default and confirmation of the sale held earlier follows and the application to set aside the sale is restored on appeal, the confirmation of the sale in the interregnum becomes automatically vacated. It has also been pointed out that the confirmation of a sale consequent to the dismissal , of an application under Order 21,Rule 90 C. P. Code, against which an appeal has been filed cannot really alter the situation and such confirmation is in a sense inchoate or incomplete and does not stamp the transaction with irrecovable finality when alone the rights of the parties get crying stallised. If this, be effected of the confirmation of a sale even after the dismissal of the application to set as We the sale and a reversal thereof on appeal, a fortiori in the present case when the application for setting aside the sale had been file a by the petitioner within the period prescribed by law for preferring such applications, the confirmation is of no consequence and would not rinder the court functus officio as claimed by the learned counsel for the first respondent. Indeed, a Division Bench of this court in Varadarajan v. Muthu Venkatapathi Reddi, AIR 1953 Mad 587 had occasion~ to consider the effect of the restoration of a petition under Order 21, Rule 90 C. P. Code dismissed for default on the confirmation of the sale already made. The Bench held that an order of confirmation of a sale is a dependent order and the restoration of an application under Order 21, Rule 90 C. P. Code, dismissed for default would make the confirmation already made ineffective and such an order (if confirmation may be treated as ineffective or automatically vacated, the net result being that such order continues to have no legal, effect or force. Dealing with the situation where there L's a confirmation of the sale before the expiry of the period provided for preferring an application to set aside the, sale, the Bench observed thus (at p. 590) of AIR:-

'It is clear from the language of 0. 21, Rule 92 that ~the court can confirm. the sale only if there has been no application under Rule 89, Rule 90 or Rule 91 filed within the period of 30 days from the date of the sale and if within the Period of 30 days there is such an application and such application is disallowed the court shall then confirm the sale. But at any time within 30 days after, the sale or during the pendency of an application, under Order . 21, Rule 89, Rule go or R. 91 the court has, no power to confirm the sale, and such; confirmation could, not be valid, that the power of the court to confirm is, dependent, upon the existence and pendency of application under the Rule 89 Rule 90 or Rule 91 or the disallowance of such application receive further support from the observation of Abdur Rahim, Offg. C. J, in the case referred to that the court allows the judgement-debtor to the file an application after the expiry of the period of 30 days after the confirmation made earlier becomes ineffective the reason being that the pendency of application is a bar to the confirmation being made or remaining effective.

6. In view of the aforesaid observation of the bench in the present case, since the application to set aside the sale had been filed by the petitioner an 17-2-77 within 60 days provided for under Art. 127 of the Limitation Act, 1963, the confirmation of the sale made by the Court before the expiry of that period available to the petitioner to take steps to set aside the sale, cannot be put against the petitioner and is ineffective to render the court functus officio. As pointed out, already, such confirmation is a dependent order subject to the result of any application that may be filed under Order 21, Rule 09, Rule 90 or Rule 91 C. P. Code,as the case may be. Under these circumstances, it is not possible to accept the contention of the learned counsel for the first respondent that marely because the sale had been confirmed in this case on 14-2-1977, the court could not have dealt with the application filed by the petitioner herein, as, on the confirmation of the sale, the court had become functus officio. Ex. A-1 clearly establishes that the property purchased by the petitioner at, the court sale held on 3-1-1977 had already been sold an 11-10-1976 in execution Of the decree in 0. S. No. 435 of 1975 and therefore an the sale of the E. P. 118 of 1976 in 0. S. No. 1176 of 1975 the second respondent did not have my saleable interest therein. The court below was therefore, in error in having dismissed the application of the Petitioner. The order cannot be sustain ed and has to be set aside and the order of the learned District. Munsif restored.The, result is the civil revision petition is allowed. No costs.

7. Revision petition allowed.


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