1. Defendants 1, 2 and 4 in 0. S. No. 52 of 1977, Sub Court, Tirunelveli, are the appellants in this civil miscellaneous appeal, which is directed against the order in E. A. -No. 62 of 1980 in E. P. No. 160 of 1978, which was an application under 0. 21, R..90, Civil P. C., to set aside the sale held on 7th Dec. 1979. It is not in dispute that the properties were brought to sale in execution of the decree in 0. S. No. 52 of 1977, and in the sale held, the first respondent purchased the property on 7th Dec. 1979 with the leave of court. Thereafter,' the appellants ' and the fourth respondent herein, on 7th Jan 1980 filed an application to set aside the sale. On l0th Jan. 1980, this petition was returned for complying with certain requirements of the office in the matter of notice being given to the other side and the production of documents referred to in para..5 of the petition and ten days that was granted for this purpose. After complying with the office requirements, the petition to set aside the sale, presented before the court on 7th Jan., 1980 originally, was represented on 21st January, 1980 and later numbered as E. A. No. 62 of 1980. Meanwhile, on 14th Jan. 1980, the sale in favour of the first respondent had been confirmed. Thereafter, when E.A. No. 62 of, 1980 and several other connected petitions, to which it is not necessary to make a detailed reference, came up before the court, the learned Subordinate Judge felt that the representation of the petition was not made in time but was done - after the confirmation of the sale. In that view' the learned Subordinate Judge dismissed E. A. No. 62 of 1980, and it is the correctness of that order that is challenged in this appeal.
2. The learned counsel for the appellant contends that an application to set aside- the sale had been made on 7th Jan., 1980 and consequently, there could not be a confirmation of the sale on 14th Jan., 1980, as if no application had been made under 0. 21, R. 90, Civil P. C or as if any application had been made and disallowed. He would further contend that any confirmation of the sale, if it had taken place in the meanwhile would only be subject to the result of the application. On the other hand, the 'learned counsel for the respondents contends that the appellants were fully aware of the confirmation of the sale and that the representation of the application Mad on 7th Jan., 1980 was not done within time and consequently, the sale came to be conformed and therefore, the appellants have no cause for any complaint. A perusal of the original petition filed by the appellants and the fourth respondent under 0. 21, R. 90, Civil P. C discloses that the initial presentation had been on 7th Jan., 1980 within 30 days from the date of sale held on 7th Dec., 1979. It is also further found from the endorsement that on l0th Jan. 1980, the petition had been returned granting the appellants and the fourth respondent, ten days' time to comply with certain defects and after so complying with the defects, the petition had been re-presented on 21st Jan. 1980 because 20th Jan., 1980 happened to be a Sunday and consequently, the re-presentation on 21st Jan- 1980 would be quite proper and in order. If it is so, the petition to set aside the sale had already been 'made' on 7th Jan. 1980 and therefore, any confirmation of sale in favour of the first respondent would only be subject to the result of the application viz., E, A. No. 62 of 1980 Almost in identical circumstances a Division Bench of the Mysore High Court in Ramakrishna v. Parameswara, AIR 1964 Mys 59, has held thus -
'It is true that no application under 0. 21. 90 can be deemed to have been admitted till either notice of that application has been to the decree-holder or decree-holders security if any called for by the court is given. It cannot however be contended that in view of the first proviso to 0.21, R.90 (added by the madras High Court), the application under Rule 90 of 0.21 can be deemed to have been 'made' only when it is admitted and not on the date of its presentation. The expression 'made' in Order 21, Rule 92 (1) cannot refer to the admission of the petition. In an application made under R.90 of 0.21 as amended by the Madras High Court, there are three different stages if the court calls for a security from the applicant firstly there is the presentation of the application, which is the same thing as making the application, secondly there is the admission of the application, and lastly the disposal of that application But the confirmation under 0. 21, R. 92 can only be made after the application made by the judgment-debtor to set aside the sale is disallowed. Where the sale is confirmed when such application is pending the order is legal. Therefore the order confirming the sale and not the sale as Such will be set aside'.
In the light of the above principles, it is, obvious that the course adopted by the court below in throwing out the application so set aside the sale as having been presented after the confirmation of sale, cannot be sustained. The result is, the civil miscellaneous appeal Is allowed; the order of dismissal in E. A. No. 62 of 1980 is set aside and the Matter is remitted for proper consideration of that petition on its merits. It is needless to point out that as a result of the direction given to him E. A. No. 62 of 1980 afresh, the confirmation of sale on 14th Jan., 1980 is of no consequence and the confirmation or otherwise of the sale will depend upon the ultimate result of the petition in E. A. No. 62 of 1980. The Civil Miscellaneous appeal is allowed. No costs.
3. Appeal allowed.