Bakhsho vs Pakhar Singh and Another

Pakhar Singh obtained a decree for Rs. 16,374/- with the future interest against Bakhsho petitioner. In execution of the decree, the land of the petitioner was auctioned. Balbir Singh respondent gave the highest bid for Rs. 42,000/-. No objections were filed against the auction. The executing Court, vide order dated 22-12-1983, confirmed the sale of the land in favour of Balbir Singh, respondent. A cheque of Rs. 18,600/- was ordered to be issued in favour of the decree-holder. The petitioner filed appeal against the order of the executing Court dated 22-12-1983, confirming the sale of the land in favour of the auction purchaser which was disposed of by the Additional District Judge, Jalandhar, vide order dated 12-4-1984. The Additional District Judge held that the appeal against the order of the executing Court, confirming the sale in favour of the auction-purchaser was not maintainable. The appeal was consequently dismissed. The petitioner has filed the present composite revision against the order of the Additional District Judge dated 12-4-1984 and the executing Court dated 22-12-1983. The petitioner has moved Civil Miscellaneous No. 2239-C-II of 1984 under Ss. 5 and 14 of the Limitation Act, for condonation of delay in filing the Civil Revision against the order of the executing Court.

The learned counsel for the petitioner has argued that the learned Additional District Judge has wrongly held that the appeal against the order of the executing Court, confirming the sale in favour of the auction-purchaser is not maintainable and in support of this contention, reliance has been placed on the provisions contained in O. 43, R. 1 of the Code of Civil Procedure.

Cl.(j) of O. 43, R. 1 reads:--

"APPEALS FROM ORDERS

Appeals from orders:--An appeal shall lie from the following orders under the provisions of S. 104, namely:--

...... ....... ....... ........

(j) an order under R. 72 or R. 92 of Order XXI setting aside or refusing to set aside a sale;

......... ....... ........ ........."

The relevant part of O. 21 Rr. 90 and 92 read:

"Application to set aside sale on ground of irregularity or fraud:-- (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.

....... ....... ....... .......

Sale when to become absolute or be set aside:-

(1) Where no application is made under R. 89, R. 90 or R. 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.

....... ....... ....... ........"

It is not disputed that in the instant case, the petitioner did not file objection under O. 21, R. 90 before the Sale was confirmed in favour of the auction-purchaser. In the absence of objection under R. 90, it was obligatory for the executing Court to confirm the sale in favour of the auction-purchaser. The executing Court consequently confirmed the sale under R. 92 in favour of Balbir Singh respondent.

The petitioner having not filed objection under R. 90, the question of setting aside or refusing to set aside the sale in favour of Balbir Singh auction-purchaser did not arise. In other words, the executing Court would have either set aside the sale in favour of the auction-purchaser or refused to set it aside, if the petitioner had filed objection under R. 90. The order of the executing Court setting aside the sale or refusing to set aside the sale is appealable under clause (j) of O. 43, R. 1. The order of the executing Court per se confirming the sale in favour of the auction-purchaser in terms of O. 21, R. 92 in the absence of objection under R. 90 cannot be treated an order refusing to set aside the sale. It is not disputed that the order of the executing Court confirming the sale in favour of Balbir Singh auction-purchaser would not be appealable if it is not covered by Clause (j) of O. 43, R.1. The learned Additional District Judge had rightly held that the order of the executing Court dated 22-12-193, confirming the sale in favour of the auction-purchaser is not appealable.

The learned counsel for the petitioner has contended that in view of the fact that the petitioner filed appeal against the order of the executing Court dated 22-12-1983, the delay in filing the present revision against the same order of the executing Court may be condoned. Keeping in view the facts of the case, the delay in filing the present revision against the order of the executing Court dated 22-12-1983 is condoned and Civil Miscellaneous Application No. 2239-C-II of 1984 allowed.

The learned counsel for the petitioner has contended that the sale in favour of the auction-purchaser was confirmed by the executing Court on 22-12-1983. The petitioner did not file objection under S. 21, R. 90, as she did not come to know about the auction for want of proclamation of sale in terms of O. 21 R. 66 of the Code. The sale in favour of the auction-purchaser stood confirmed by the time the petitioner came to know of it. The petitioner did not approach the executing Court for relief, because the sale already stood confirmed. It is under these circumstances that the petitioner has filed the present revision wherein the prayer made is that the sale by auction in favour of Balbir Singh respondent be set aside for want of proclamation under O. 21, R. 66 of the Code. This contention is also without any merit. The petitioner has not sought the relief of getting the sale set aside from the executing Court so far. It is incorrect that the petitioner could not seek relief in this respect from the executing Court, because the sale in favour of the auction-purchaser stood confirmed. If the petitioner had filed objections for getting the sale set aside, the order passed would have been appealable under Clause (j) of O. 43, R. 1 of the Code. The present revision against the order of the executing Court, confirming the sale in favour of the auction-purchaser in the absence of objection under O. 21, R. 90 of the Code is rather misconceived.

In view of the discussion above, the revision fails and is dismissed.

Petition dismissed.