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Mandi Mia Vs. Sekander Mea and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1941Cal411
AppellantMandi Mia
RespondentSekander Mea and ors.
Cases ReferredDhirendra Nath v. Ijjetali Miah
Excerpt:
- .....holding belonging to the latter. the sale was held on 7th february 1933 and the purchaser was the decree-holder himself. it appears that there was a proceeding to set aside the sale under order 21, rule 90, civil p.c., which was eventually dismissed some time in the year 1934. we find from the order sheet of the execution case that on 5th march 1935 the court passed an order directing the appellant to deposit the landlord's fees within seven days. this order was not complied with and on 19th june 1935 the petition for confirmation of sale was rejected. nothing was done for a period of three years after this and on 10th september 1938 the decree-holder auction purchaser made the present application for confirmation of sale and prayed at the same time for exemption from payment of the.....
Judgment:

B.K. Mukherjea, J.

1. This is an appeal on behalf of the decree-holder auction purchaser and it arises out of a proceeding for confirmation of an execution sale. The facts lie within a very narrow compass and may be stated as follows : The appellant before us obtained a money decree against the respondents and in execution of the same put up to sale an occupancy holding belonging to the latter. The sale was held on 7th February 1933 and the purchaser was the decree-holder himself. It appears that there was a proceeding to set aside the sale under Order 21, Rule 90, Civil P.C., which was eventually dismissed some time in the year 1934. We find from the order sheet of the execution case that on 5th March 1935 the Court passed an order directing the appellant to deposit the landlord's fees within seven days. This order was not complied with and on 19th June 1935 the petition for confirmation of sale was rejected. Nothing was done for a period of three years after this and on 10th September 1938 the decree-holder auction purchaser made the present application for confirmation of sale and prayed at the same time for exemption from payment of the landlord's fees on the ground that after the amending Act (Bengal Act 6 of 1938) was passed, the payment of such fees was not necessary.

2. The trial Court by its order, dated 5th November 1938, directed the appellant to put in the landlord's fee within 15th November 1938 on payment of which the sale would be confirmed. The decree-holder however did not pay these fees and the result was that the Court rejected the petition for confirmation of the sale. Against this order an appeal was taken to the Court of the District Judge of Noakhali. The learned District-Judge, who heard the appeal, differing from the trial Judge, held that it was not necessary for the decree-holder to deposit the landlord's fees after the passing of the Bengal Act, 6 of 1938. The District Judge was of opinion that as the sale was held prior to the year 1938, the substantive right of the landlord to recover his fees was not in any way affected by the amending Act, but as the procedure by which such rights could be enforced under the old Act was no longer in existence, it was for the landlord to recover the amount by way of a suit. The District Judge however held that the application for confirmation of sale which was made by the decree-holder in the present case came within the purview of Article 181, Limitation Act, and as the application was filed more than three years after the date of the sale and also more than three years after the application under Order 21, Rule 90, Civil P. C, had been disposed of, the petition must be rejected as time-barred. It is against this order that the present second appeal has been preferred.

3. Mr. Das, who appears in support of the appeal, has argued before us that the view taken by the District Judge on the question of limitation is wrong and Article 181, Limitation Act, has no application to the facts of the present case. In our opinion, this contention is sound and must prevail. Under Order 21, Rule 92, Civil P. C, the sale has got to be confirmed when there is no application under Order 21, Rules 89, 90 or 91, Civil P. C, or when such application is made and disallowed : in the absence of an order setting aside a sale, it is the duty of the Court to confirm the sale and there is no provision in the Code of Civil Procedure for an application to be made by the auction purchaser for confirmation of the sale. As was observed by the Judicial Committee in Venkata Jagannatha Rao v. Venkata Kumara Mahipati Surya Rao , the law does not prescribe any special period for an application for an order of confirmation. The principle seems to be that when the Code itself enjoins the duty upon the Court which it is bound to do suo motu without any application by any party, such application, if actually made, is wholly superfluous and has no further utility than that of inviting the Court to do what it is bound to do under the law. Such application would not attract the operation of Article 181, Limitation Act, which contemplates a case where a Court has got to be moved by an application and without which it is not bound to exercise its powers. This view is supported by a number of decisions of different High Courts in India and reference may be made among others to the cases in Krishna v. Anukul Chandra ('02) 6 CWN 190, Vithal Janardan v. Vithojirav Putlajirav ('82) 6 Bom 586 and Kylasa Goundan v. Ramasami ('82) 4 Mad 172.

4. The learned Judge in our opinion was wrong in holding that although no such application was necessary for confirmation of sale under the Code of Civil Procedure, yet it; would be necessary when the sale is of an occupancy holding and has got to be confirmed under Section 26E, Ben. Ten. Act. Section 26E, as it stood prior to the amendment of 1938, nowhere laid down that an application was necessary for confirmation of the sale. On the other hand, para. (1) of the section made it a duty of the Court to pass an order directing the auction purchaser to deposit the landlord's fees within a certain time and Sub-section (3) laid down the procedure which was to be followed by the Court in cases where there was a default in payment of these fees. The ground upon which the District Judge has rejected the application of the appellant cannot therefore in our opinion be supported.

5. The learned advocate who appears for the respondents has attempted to support the decision of the lower appellate Court on the ground that as the decree-holder auction purchaser had previously made another application for confirmation of the sale, which was rejected by the Court, it was not competent for him to make another application. We do not think that this contention can be accepted. It is true that on 5th March 1935, the executing Court made an order directing the appellant to deposit the landlord's fees within seven days from that date and as there was no compliance with that order, the Court rejected the application for confirmation of sale. It was open to the Court, in our opinion, to follow the procedure in Sub-section (3) of Section 26E and direct a forfeiture of the purchase money and a resale of the property. The Court however did not do it and as the execution case itself was dismissed on full satisfaction we think that it is not open to the Court to say now that the sale was a nullity. The sale therefore must be treated to be still subsisting and as we have already held that there is no period of limitation within which an application for confirmation of sale could be made by the decree-holder, we think that it is still open to the decree-holder to make another application for confirmation of the sale, which he has now made.

6. The question however arises as to whether the appellant is bound to pay the landlord's fees before he can have the sale confirmed and if so, whether the time for payment of such fees is now barred by limitation. In our opinion the present case is governed by Section 26E, Ben. Ten. Act, as it stood prior to the amendment of 1938 and the auction purchaser is bound to pay the landlord's fees before the sale can be confirmed. The sale was held in 1933 prior to the amendment of the Bengal Tenancy Act in 1938 and as has been conceded by both the parties, the amending Act, which is not retrospective in its operation, kept intact the substantive rights of the parties which accrued at the date when the sale took place. The District Judge however was of opinion that though the substantive right to recover the landlord's fees was preserved, as it accrued under the old Act, yet the procedures laid down in Section 26-E for enforcement of that right having been abolished at the date when the present application was made, the procedure laid down in that section could not be followed and the landlord was bound to proceed by way of an ordinary suit. We do not think that this view is right. As regards the payment of landlord's fees, when there is an execution sale of an occupancy holding, it was Section 26E of the old Act which created the right or obligation and at the same time provided a remedy which was to be followed for the enforcement of the same. The entire section has been repealed by the amending Act. As was pointed out in the case in Dhirendra Nath v. Ijjetali Miah : AIR1940Cal423 , when the repealing enactment repeals a substantive right as well as the procedure by which the right was enforced, in such cases if the right is saved in respect of any transaction which was completed prior to the introduction of the Act, the remedies in respect of such rights are also saved under Section 8, Bengal General Clauses Act. We hold therefore that the view taken by the Munsif was right and the auction purchaser was bound to pay the landlord's fees before he could ask for confirmation of the sale.

7. The only other point that remains to be considered is whether the time for making the application is now barred. There is no time limit prescribed by Section 26E, Ben. Ten. Act. The Court can indeed specify the time within which the fees have got to be paid and in default can forfeit the purchase money and direct a resale, but so long as it is not done, we think that the money can be deposited. The 'result therefore is that we allow the appeal and set aside the judgment of the lower appellate Court and send the case back to the trial Court with a direction that it will fix a time within which the landlord's fees would have to be deposited by the decree-holder auction purchaser. In case the order is complied with, the sale would be confirmed. Otherwise the executing Court would proceed to exercise its powers under Section 26E Clause (3), Ben. Ten. Act, as it stood prior to the amendment of 1938. Parties will bear their own costs throughout. The application is rejected.

Biswas, J.

8. I agree.


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