Lakshmi Ammal vs Thangaraju Padayachi and Another

Ganapatia Pillair, J.—The Civil Revision Petition is filed by an auction-purchaser, one Lakshmi Ammal, against the order of the Subordinate

Judge of Kumbakonam in I.A. No. 187 of 1956 in O.S. No. 10 of 1955. To appreciate the question arising for determination in this petition, it is

necessary to state the following facts.

O.S. No. 10 of 1955 was a partition suit between co-sharers and in that suit, after the preliminary decree was passed for partition, an

advocate-receiver was appointed by the Court with power to sell some items of property concerned in the suit. Accordingly, that receiver sold on

the 16th June, 1956, one item of property S. No. 5/2, 73 cents in extent, in public auction. The present petitioner, Lakshmi Ammal, was the

highest bidder in the auction and her bid of Rs. 701 was accepted by the receiver and he reported to the Court the fact of the highest bid received

at the auction, held by him. After the conclusion of the auction, one Thangaraju Padayachi, the respondent to this revision petition, filed an

application before the receiver expressing his willingness to purchase the property for a sum of Rs. 801. The receiver forwarded this application

also to the Court of the Subordinate Judge and asked for directions. When the report of the receiver was received in the Sub-Court, Thangaraju

Padayachi filed LA. No. 150 of 1956 in the Courts asking for the relief that the property should be directed to be re-sold on his offer to purchase

for a higher price than the price offered by Lakshmi Ammal. Thereupon the learned Subordinate Judge directed Thangaraju to deposit Rs. 801 into

Court to test his bona fides and accordingly this sum was deposited into Court. Nothing further was done in this application filed by Thangaraju. In

the meanwhile, Lakshmi Ammal filed I.A. No. 172 of 1956 requesting the Subordinate Judge to confirm the sale in her favour. In due course the

sale in favour of Lakshmi Ammal was confirmed by the order of the Subordinate Judge, dated 3rd August, 1956. In the application made by

Lakshmi Ammal requesting confirmation of the sale in her favour, she had impleaded Thangaraju as a respondent. It is admitted that notice of this

application was not given to Thangaraju before the learned Subordinate Judge passed orders on 3rd August confirming the sale. After the sale was

confirmed, Thangaraju Padayachi filed LA. No. 187 of 1956 before the learned Subordinate Judge requesting him to review the order confirming

the sale in favour of Lakshmi Ammal and to direct a release of the property on the basis of the higher offer which he had already made. The

learned Judge reviewed his previous order, dated 3rd August, 1956, set aside the confirmation of sale in favour of Lakshmi Ammal and directed a

re-sale of the property. The validity and legality of this order is in question in this Civil Revision Petition.

Without going into the competence of a Court to review its own order confirming a sale, the learned Counsel for the respondent, Mr. Desikan,

properly concedes that if the prior order confirming the sale in favour of Lakshmi Ammal had been made with notice to his client, he would have no

ground to urge against the legality of the first order of confirmation. No application by an auction-purchaser is necessary under the CPC to enable

the Court to confirm the sale. Confirmation of the sale is a duty of the Court which it should suo motu perform without being prompted by any

party. The mere fact that an application was made by Lakshmi Ammal and in that application Thangaraju Padayachi was erroneously made a party

would not clothe Thangaraju Padayachi with any right which he would not otherwise have under the law. The Court was perfectly competent to

confirm the sale in favour of Lakshmi Ammal without reference to Thangaraju Padayachi. Of course, the learned Subordinate Judge should have

passed orders on the application filed by Lakshmi Ammal along with the application which Thangaraju filed for a re-sale, in which case this

confusion would not have arisen. All interlocutory applications relating to the same sale, whether made by the auction-purchaser or any other party,

should be posted to the same date, heard together and orders should be passed on any appropriate application in consonance with the decision

which the Court arrives at. The failure to observe this elementary rule has led to this result, viz., that the lower Court passed an order confirming

the sale in favour of Lakshmi Ammal after having already passed an order on Thangaraju''s application directing the re-sale of the property.

I hold that Thangaraju was not entitled to notice in the application for confirmation of sale which Lakshmi Ammal made in which proceeding the

sale was confirmed by the Court. This order of confirmation cannot be reviewed on the ground mentioned by the lower Court, viz., that

Thangaraju had no notice of this proceeding. The conclusion of the learned Subordinate Judge in his order in I.A. No. 187 of 1956 that he could

review the confirmation of sale already made in favour of Lakshmi Ammal on the score that in the application for confirmation of sale notice had

not been taken to Thangaraju is, therefore, incorrect.

The Civil Revision Petition is allowed and the order passed in I.A. No. 187 of 1956 is hereby set aside. No costs.