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B.K. Narayanaswami Chettiar Vs. Gurukkar Rudrappa and anr. - Court Judgment

LegalCrystal Citation
Subject civil
CourtChennai
Decided On
Reported inAIR1944Mad314
AppellantB.K. Narayanaswami Chettiar
RespondentGurukkar Rudrappa and anr.
Cases ReferredVelayudha Mudali v. Changama Naidu A.I.R.
Excerpt:
- - thereupon the appellant deposited the said sum in court on 5th january 1940, to be paid to the decree-holder in satisfaction of the amended decree and made the present application to set aside the sale as the decree was otherwise satisfied as aforesaid. furthermore order 21, rule 93 of the code clearly implies that the proceeds of the sale may be paid to the decree-holder before the date of its confirmation......7. this argument is in my opinion fallacious. it is one thing to say that confirmation of a sale held in execution of a decree is part of the proceeding to execute the decree in the sense that it relates to the discharge or satisfaction of the decree, but it is a different thing to hold that in confirming a sale the court is allowing the property already sold to be 'proceeded against' in execution of the decree. indeed it was recognised in that case itself that a sale which took place before 1st october 1937, could not be set aside under the act. the effect of an order under section 19 is only to reduce the amount due to the decree-holder and there is nothing in the act to indicate that such an order affects an execution sale held before 1st october 1937, especially when a third.....
Judgment:

Patanjali Sastri, J.

1. This appeal arises out of an application made by the appellant to set aside an auction sale of certain properties belonging to his family in execution of a decree for about Rs. 1000 obtained against him and his coparceners. The sale was held on 19th September 1935, and the properties were purchased by respondent 2, herein a stranger, but the sale was not confirmed as the judgment-debtors applied to have the sale set aside under O.21, R.90, Civil P.C. While the said proceeding was dragging on its weary length through the various Courts-it is said to be still pending in some form in this Court - the Madras Agriculturists Relief Act was passed on 22nd March 1938, and the decree was amended on 26th September 1939, by scaling down the amount due thereunder to a sum of Rs. 448-7-6 only in accordance with the provisions of that Act. Thereupon the appellant deposited the said sum in Court on 5th January 1940, to be paid to the decree-holder in satisfaction of the amended decree and made the present application to set aside the sale as the decree was otherwise satisfied as aforesaid. The application having been dismissed in both the Courts below, this appeal has been preferred to this Court.

2. It is conceded for the appellant that Section 23, Madras Agriculturists Relief Act, which provides, as part of the scheme of relief afforded by the Act, for setting aside a sale or foreclosure of any immovable property 'sold or foreclosed on or after 1st October 1937,' on certain conditions being fulfilled, has no application here. But it is urged that Section 7 of the same Act has by necessary implication, a wider operation and has the effect of nullifying sales held even before 1st October 1937, quite irrespectively of the conditions specified in Section 23, provided only such sales had not been confirmed before the commencement of the Act. Paragraph 2 of Section 7 on which reliance is placed runs as follows:

No sum in excess of the amount as so scaled down shall be recoverable from him or from any land or interest in land belonging to him; nor shall his property be liable to be attached and sold or proceeded against in any manner in the execution of any decree against him in so far as such decree is for an amount in excess of the sum as scaled down under this Chapter.

It is said that confirmation of a court sale is a necessary and integral part of an execution proceeding and that in having such a sale confirmed the decree-holder is still 'proceeding' against the property in execution of his decree; wherefore, it is argued, to allow the sale in favour of respondent 2 to be confirmed after Section 7 has come into force would be tantamount to allowing the appellant's property to be 'proceeded against' in execution of the original decree for the larger amount, so as to contravene the mandatory provisions of Section 7. This argument proceeds on a misapprehension of the effect of a sale in execution of a decree and its subsequent confirmation by the Court under the provisions of the Civil Procedure Code. As pointed out by their Lordships in Nanhelal v. Umrao Singh , when once an execution sale has been carried out the interests of the auction purchaser comes into being and such interest can be displaced only in one of the modes sanctioned by the law, the Court being otherwise under an obligation to con-firm the sale. Furthermore Order 21, Rule 93 of the Code clearly implies that the proceeds of the sale may be paid to the decree-holder before the date of its confirmation. It will thus be seen that the process of realisation is complete subject only to a liability to refund the purchase money on a setting aside of the sale if any under Rule 92. There can be no question therefore of the decree-holder 'proceeding against' the property at the stage when the Court is called upon to confirm the sale. It follows that the confirmation of the sale in favour of respondent 2 will not contravene the provisions of Section 7, and the sale must stand.

3. There is no direct authority on the point but reliance was placed by the learned Counsel for the appellant on Velayudha Mudali v. Changama Naidu A.I.R. 1942 Mad. 727 where this Court held that proceedings for setting aside an execution sale under Order 21, Rule 90 were liable to be stayed under Section 20, Agriculturists Belief Act, as execution proceedings and it was said that this implied that confirmation which has to follow on the dismissal of an application to set aside the sale is also part of the execution proceeding falling under Section 7. This argument is in my opinion fallacious. It is one thing to say that confirmation of a sale held in execution of a decree is part of the proceeding to execute the decree in the sense that it relates to the discharge or satisfaction of the decree, but it is a different thing to hold that in confirming a sale the Court is allowing the property already sold to be 'proceeded against' in execution of the decree. Indeed it was recognised in that case itself that a sale which took place before 1st October 1937, could not be set aside under the Act. The effect of an order under Section 19 is only to reduce the amount due to the decree-holder and there is nothing in the Act to indicate that such an order affects an execution sale held before 1st October 1937, especially when a third party has purchased the property at such sale. The appeal fails and is dismissed with costs. Leave refused.


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