1. The only question of law which requires consideration in this second appeal by the unsuccessful plaintiff is whether the sale of the properties on the 9th November 1942 in execution of a small cause decree and the confirmation thereof on the 12th December 1942 is valid. The ground on which the confirmation was attacked is that after the date of sale and before confirmation, the judgment-debtor died on the 14th November 1942, and as the confirmation order was passed without impleading the legal representatives of the judgment-debtor the confirmation was not binding and was of no effect. This contention was accepted by the lower courts and the claim of the plaintiff to confirm his possession of the property which he purchased was negatived.
There is no direct case on the point in any of the courts except a decision of the Oudh Court in -- 'Kamakshya Dutt Ram v. Shyam Lall', AIR 1929 Oudh 235 which is relied on, on behalf of the appellant and which seems to support his contention. The facts were similar and the judgment-debtor died there, as here, within thirty days from the date of sale. The learned Judges held that as there was no provision in the Civil Procedure Code requiring legal representatives of a judgment-debtor, when he dies after the sale, to be brought on record for the purpose of confirmation, there is no need to bring the legal representatives on record and that the confirmation after the death of the judgment-debtors without bringing the legal representatives on record even was valid.
The position of a purchaser after the sale and before the confirmation is that he has only a sort of inchoate interest which might become a vested interest in the property after confirmation. No doubt the confirmation in the absence of applications either under Order XXI, Rule 89, Order XXI, Rule 90 or Rule 91 Civil Procedure Code is automatic in the sense that there being no objection, confirmation of sale should follow as a matter of course. But that does not mean that an order for confirmation of sale can be made without the presence of the parties who are sought to be affected. Under Order XXI, Rule 92 the sale is to be confirmed if no application is made under Rule 89 or Rule 90 or Rule 91. In a case where the judgment-debtor or his legal representatives are parties to the proceedings they would undoubtedly be aware of the sale and within the period of limitation provided by law, namely, thirty days, they would be in a position to take steps to have the sale set aside either by deposit of the money, or if the sale was vitiated by irregularities, by an application under Order XXI, Rule
The position of others who are also entitled under Rules 89 and 91 to apply for the relief provided under those rules would be different because it may be that they are not aware of the sale and they may have no means of knowing the same and therefore they may not have an opportunity to take proceedings under Rule 89 or Rule 91.
In my opinion an answer to the question raised by the learned advocate for the appellant that the judgment-debtor's legal representatives are not necessary parties to a confirmation of sale is met by the language of Order XXI Rule 92 (3). Under that sub-clause a suit to set aside an order made under Rule 92 shall not be questioned in a suit by any person against whom such an order is made is significant as indicating that if even an order of confirmation is made under Rule 91 (1), it must be an order made against a person which implies that the confirmation order is made against the judgment-debtor or in case of his death, against his legal representatives. The very object of that rule is to prevent the judgment-debtor, and in case he dies, his legal representatives, from agitating the question of the finality of the sale in a later proceeding and to compel them to take proceedings under Rules 89 or 90 in cases in which the money is deposited or the requirements of Rule 90 are satisfied. The decision of the Oudh Court, overlooked, in my opinion, the language of Clause (3) of Rule 92.
It has been established by decisions that before confirmation the judgment-debtor's interest in the property could be attached and sold even by another creditor, i.e. his interest is not defeated and does not become vested in the auction-purchaser until there is a confirmation order. The confirmation order therefore has got a double operation of divesting the judgment-debtor of his title in the property and vesting it retrospectively in the auction purchaser to take effect from the date of the sale. I think therefore that the view taken by the courts below is correct.
2. But they were not justified in holding that the sale itself is a nullity. The only order which the judgment-debtor's legal representatives are entitled to attack is the order of confirmation of sale made behind their back. The sale therefore of 9th November 1942 cannot be set aside but the confirmation is a nullity. It therefore follows that the plaintiff-auction purchaser is not entitled to have the relief which he asked in the suit, namely, confirmation of his possession by virtue of the auction sale. It is unnecessary to indicate in this judgment whether or not the decree-holder is entitled now to bring the sale to completion by taking further steps in execution to bring any legal representatives on record and to have an order of confirmation made. That question does not arise for consideration in this second appeal and all that needs be stated is that the sale stands but the confirmation falls to the ground. The second appeal fails and is dismissed with costs. No leave.