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Ambujammal Vs. P. Thangavelu Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad399; (1941)1MLJ193
AppellantAmbujammal
RespondentP. Thangavelu Chettiar and anr.
Cases ReferredRaghavachariar v. Murugesa Mudali
Excerpt:
.....under a decree which was satisfied by a compromise between the parties in the interval between the sale and the confirmation. their lordships held that the parties to the suit could not get rid of the sale to a third party merely by asserting that the decree had been satisfied out of court and that the only means by which the, sale could be avoided were those embodied in order 21, and that if within 30 days of the sale there is no such application, it was obligatory on the court under rule 92 to pass an order confirming the sale not withstanding the circumstance that the decree-holder had admitted satisfaction of the decree. the learned judge comes to the conclusion in the light of this alteration of the code as well as of the mandatory language of rule 92, that even though the decree..........of this result and the matter of the confirmation of the sale was adjourned. meanwhile a review application was filed against the dismissal of the application under order 21, rule 90. this review application was rejected on 15th march, 1940 and the sale was forthwith confirmed. it is contended that the executing court had no jurisdiction to proceed with the execution of a decree which had ceased to have a judicial existence and that consequently the confirmation of the sale which is a step in aid of execution is an invalid act which has to be set aside.2. mr. venkatachari for the petitioner admits that the decision of madhavan nair, j., in sorimuthu pillai v. muthukrishna pillai (1932) 65 m.l.j. 253 : i.l.r. 56 mad. 808, is against him, but he contends that this decision is.....
Judgment:

Wadsworth, J.

1. This revision petition challenges the correctness of an order confirming a sale when the decree upon which the sale was based had been set aside in appeal in the interval between the holding of the sale and the passing of the order of confirmation. Under this decree there were two sales. At the first the decree holder was the purchaser and the sale was set aside. On 11th December, 1939, there was a fresh sale and the present respondent, a stranger, purchased the property. Against this sale also there was an application under Order 21, Rule 90, Civil Procedure Code. That application was dismissed on 25th January, 1940; but for some reason the sale was not immediately confirmed. On 30th January, 1940, the defendant's appeal succeeded and the suit was dismissed. On the following day the executing Court was appraised of this result and the matter of the confirmation of the sale was adjourned. Meanwhile a review application was filed against the dismissal of the application under Order 21, Rule 90. This review application was rejected on 15th March, 1940 and the sale was forthwith confirmed. It is contended that the executing Court had no jurisdiction to proceed with the execution of a decree which had ceased to have a judicial existence and that consequently the confirmation of the sale which is a step in aid of execution is an invalid act which has to be set aside.

2. Mr. Venkatachari for the petitioner admits that the decision of Madhavan Nair, J., in Sorimuthu Pillai v. Muthukrishna Pillai (1932) 65 M.L.J. 253 : I.L.R. 56 Mad. 808, is against him, but he contends that this decision is wrong. In support of this contention he points out that the learned Judge has been led astray by relying upon an incorrect head-note in order to differentiate the case of Ariatullah v. Sashi Bhusan Hhuazrah (1919) 55 I.C. 547 : 24 C.W.N. 73. The facts of the latter case are rather complicated, but I have satisfied myself that the head-note in the Indian Cases report is incorrect and that this was a case in which a sale was held under a decree which at' the time of the sale subsisted, but by the time when the sale came up for confirmation after a long series of judicial events which I need not elaborate, that decree had ceased to exist. The learned Judges held that in such a case confirmation of the sale ought to be refused. A similar view was also taken in a decision by a Bench of the Nagpur Chief Court (vide Hariram v. Gopikisan A.I.R. 1921 Nag. 121.) But I doubt very much whether this view is now tenable having regard to the more recent decisions of the Privy Council. In the case of Seth Nanhelal v. Umrao Singh (1930) 60 M.L.J. 423 : L.R. 58 IndAp 50 , the Privy Council had to deal with the case of a sale to a third party under a decree which was satisfied by a compromise between the parties in the interval between the sale and the confirmation. Their Lordships held that the parties to the suit could not get rid of the sale to a third party merely by asserting that the decree had been satisfied out of Court and that the only means by which the, sale could be avoided were those embodied in Order 21, and that if within 30 days of the sale there is no such application, it was obligatory on the Court under Rule 92 to pass an order confirming the sale not withstanding the circumstance that the decree-holder had admitted satisfaction of the decree. In this case it is pointed out that when the interests of a third party intervene, it is no longer a matter between the decree-holder and the judgment-debtor and that the process of confirmation follows automatically under Rule 92 when there had been no application under Rules 89 to 91 or any-such application has been disallowed. That is essentially the view taken by Madhavan Nair, J., in the case already referred to. The learned Judge points out that under Section 316 of the Code of 1882 there was a proviso the effect of which was that confirmation should follow provided that 'the decree under which the sale took place was still subsisting, at that date' and under that section the date of the sale was the date of the confirmation. Under Section 65 of the present Code the property is deemed to vest in the purchaser from the date of the actual sale and not from the date of the confirmation and there is a significant omission of this proviso making the existence of the decree an essential condition for the confirmation of the sale. The learned Judge comes to the conclusion in the light of this alteration of the Code as well as of the mandatory language of Rule 92, that even though the decree has been set aside after the sale and before confirmation a sale in favour of a stranger purchaser must nevertheless be confirmed if the sale cannot be set aside under the provisions of Rules 89 to 91 of Order 21. The same view has been taken by a Bench of the Nagpur High Court in a recent case, Biridichand v. Ganpatsao A.I.R. 1938 (Nag.) 525. So far as I am aware the decision of Madhavan Nair, J., which was passed in 1932 has not been doubted by any decision of this Court. It is argued by Mr. Venkatachari that there are circumstances in which the Court is entitled not to confirm a sale and he quotes Raghavachariar v. Murugesa Mudali : AIR1923Mad635 as illustrating the fact that the Court may under its inherent powers refuse to confirm a sale in a case where the sale has been brought about owing to a fraud on the Court. Granting so much, it seems to me that there could be no question of the exercise of the inherent powers in the present circumstances so as to safeguard the judgment-debtor by doing an injury to an innocent auction-purchaser. Whether or not there should be a right to challenge a sale under a valid decree is to my mind purely a question of policy and not a question of justice. There must be a power in the Court to enforce its decrees. That power is in many cases the power of sale. Certain safeguards are given whereby judgment-debtors can get a sale cancelled within a certain time. There is no provision in the Code for the cancellation of a sale merely because of the cancellation of the decree and though it is in accordance with justice that a person who has succeeded in appeal should get from the opposite party such restitution as is possible, there is no principle of justice whereby an innocent third party who has purchased in a valid auction held by the Court should be deprived of his property, merely because the decree under which, the sale was held has been cancelled in appeal. On general principles the judgment-debtor can look to the decree-holder to give restitution when the decree has been set aside in appeal, but there is no general principle which would give him a similar right to look to a third party who has for good consideration purchased the property sold through the Court. It seems to me to follow therefore that the inherent powers of the Court cannot be called in aid to justify a power for which the Code contains no provision, when the desirability of the existence of such a power is purely a matter of policy upon which two opinions may quite well be taken. It seems to me therefore that the balance of authority is in favour of the view taken by Madhavan Nair, J., and personally I see no reason to take a different view.

3. The petition is therefore dismissed with costs of the second respondent.


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