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Judgment
Abdur Rahim, J.—This suit was instituted in order to have an auction sale held in execution of a decree of the plaintiff''s property set aside,
on the ground of irregularity and fraud. The sale was held on 20th March 1917. The present plaintiff, the judgment-debtor, applied on 25th April
1917 under Order XXI, Rule 90, of the Code of Civil Procedure, to set aside the sale on the very same grounds as are now raised in the plaint.
The application was dismissed as it was made after the expiry of the thirty days allowed by law and we may point out that the sale had been
confirmed under Order XXI, Rule 92(1), on the day previous to the application. Then the plaintiff filed an appeal and the Appellate Court
remanded the application for fresh disposal on the ground that the Court had inherent jurisdiction to set aside the sale even after the expiry of the
period of limitation and after the confirmation of the sale.
The present suit was filed on 27th August 1917, i.e., during the pendency of the appeal against the order dismissing the present plaintiff''s
application under Rule 90.
The question arises whether the present suit is maintainable. Order XXI, Rule 92(3) states that:
no suit to set aside an order under this rule shall be brought by any person against whom such order is made.
Rule 90 provides for the question being decided by the Court upon an application made to it for setting aside the sale if the sale is vitiated by
material irregularity or by fraud in publishing or conducting it. In this case these are the very grounds for impeaching the sale and the legislature has
specially laid down that a sale cannot be impeached when once it has been confirmed on such grounds except in accordance with the procedure
provided by Order XXI, Rule 90, and that no suit shall lie after the sale has been confirmed.
The lower Appellate Court held that the suit was maintainable solely relying on some general observations of Mr. Justice Sadasiva Ayyar in the
case Payidanna v. Lakshminarasamma I.L.R(1915) ., Mad., 1076 . These observations, whatever might have been their application to the facts of
the case before the learned Judge, have no application to the present case, inasmuch as the plaintiff had a clear remedy u/s 90 and failed to avail
himself of it during the time allowed by law, so that the sale became absolute u/s 92. The policy of the legislature is quite obvious that all questions
of this character should be decided by the executing Court and not by a separate suit.
The judgment of the Subordinate Judge should be set aside and that of the District Munsif restored with costs here and in the Court below.
Odgers, J.
I agree. It is quite clear to my mind that the lower Appellate Court is wrong in holding that a suit lies in the present case. The matter is clearly
concluded by the words of Order XXI, Rule 92(3). The lower Appellate Court, however, has considered itself bound by certain observations of
Sadasiva Ayyar, J., in Payidanna v. Lakshminarasamma I.L.R(1915) ., 38 Mad., 1076 . Not only do I think those observations have no
application to the present case, as erroneously stated by the lower Appellate Court, but, with respect to the learned Judge, I find myself quite
unable to agree with him when he says that in a case under Order XXI, Rule 90.
the Court without setting aside the sale can give an injunction to the Court auction-purchaser to reconvey the property to the judgment-debtor.
If the learned Judge meant that relief can be afforded in execution to the judgment-debtor outside the provisions of the Code of Civil Procedure,
I am unable, with respect, to follow him. The learned Judge also observes that:
the hands of Courts of justice are not tied in these matters simply because, to support the grant of a particular appropriate relief, no exact
precedent could be quoted,
By that I assume the learned Judge to mean that reliefs can be granted in certain cases, although such reliefs may not be afforded by any
provision of law, or by the practice of the Courts. If that be the meaning of the learned Judge, I, respectfully but emphatically, dissent from it.
I agree with my learned brother as to the order to be made in this case.