Neelambal and Another vs Mohanram Chettiar and Others

T. Sathiadev, J.—Auction purchaser in O.S. No. 54 of 1968 on the file of Sub Court, Chidambaram filed E.A. No. 25 of 1982 under

Order 21, Rule 22 read with Section 151 of the CPC for confirmation of the Court sale held . on 6-3-1972 and for the grant of sale certificate,

praying that the said orders be passed ex-parte and out of order. He also filed a petition u/s 151 of the Code for dispensing with notice in the

application filed under Order 21, Rule 22 of the Code. Court below, by not taking into account E.A. Nos. 14 of 1979, 33 of 1979, 172 of 1981,

173 of 1981 and 220 of 1981, which are applications filed for cancellation of the auction sale, and which are still pending disposal, had ordered

the petition for confirmation of sale. Aggrieved against the said order, this revision petition is filed by Neelambal and Valambal, who are heirs of the

judgment-debtor and who have claimed reliefs, under Acts 38 of 1972, 13 of 1980 and 10 of 1981 for setting aside the auction also, for recording

part satisfaction etc., which applications are still pending disposal.

Mr. V. Sridevan, learned Counsel for judgment-debtors, submits that when applications have been filed for grant of relief under special

enactments, court below ought not to have confirmed the sale under Order 21, Rule 92 of the Code, whereas Mr. M. Srinivasan, learned Counsel

for auction purchaser, submits that when applications, if any, filed under Rules 89 to 91 of Order 21 had not been pending, then, the court has no

choice in the matter but to confirm the sale and such a sale must be made absolute under the CPC irrespective of whatever be the other provisions

made under special enactments. He further goes to the extent of contending that it is the duty of the court to confirm the sale, irrespective of an

application being filed to that effect, and by relying upon the decision in Sashi Bhusan Mitra and Others Vs. Ramlal Mitra, , he would go to the

extent of contending that no formal order requires to be passed under Order 21, Rule 22 of the Code and hence, the order passed by the court

below cannot be termed as having been passed hastily and without any regard to the provisions of Order 21, Rule 22 C.P.C.

On the scope of Order 21, Rule 22, in Janak Raj Vs. Gurdial Singh and Another, , it has been held that, notwithstanding the factum of sale held

ex-parte having been set aside, still the sale should be confirmed because the law makes ample provision for the protection of the interests of

judgment-debtor, in spite of confirmation of sale, if ultimately he is to succeed in other proceedings. Apart from exceptional cases where court will

refuse to confirm a sale because it was held without giving notice to the judgment-debtor or the court was misled in fixing the reserve price or

where there was no decree in existence at the time when the sale was held ordinarily if a sale had been validly held, an application for setting it

aside can only be made under Order 21, Rules 89 to 91, and if no such application was made or when made had been disallowed, then the court

has no choice but to confirm the sale. In Hukamchand Vs. Bansilal and Others, , it was reiterated that in spite of an application having been filed

under Order 34, Rule 5(1), if Order 21, Rule 92 is invoked, and when it contemplates only certain conditions to be satisfied, no other factor could

be taken into account to refuse to confirm the sale. An application filed under Order 34, Rule 5 does not empower the court to extend the time,

and all that it does is to permit the mortgagor-judgment-debtor to deposit the amount before confirmation of sale . The earlier decision above

referred to was relied upon in this decision, to take this view, even when an application under Order 34, Rule 5 was pending.

In the context of those decisions of the Supreme Court, Mr.Srinivasan refers to the decision in Veda Gounder and Others Vs. Arunachalam

Chettiar, , which took the view that no application is necessary by the auction purchaser for confirmation of sale under Order 21, Rule 22. Since

confirmation is a statutory obligation imposed on the court and even if decree-holder, as auction purchaser, formally applies for confirmation of

sale, it would be an obligation to which Article 181 would apply and no question of limitation would arise. In Lakshmi Ammal Vs. Thangaraju

Padayachi and Another, , it was held that no application by an auction-purchaser was necessary to confirm the sale, since it is the duty of the court

which should be performed suo motu with out being prompted by any party. Of course he also relies upon the decision in Sashi Bhusan Mitra and

Others Vs. Ramlal Mitra, , which took the extreme view that no formal order of confirmation is at all necessary. Relying on these decisions, he

submits that the order, as passed, is strictly in accord with the provisions of Order 21, Rule 92 and that no exception could be taken to it,

particularly when the auction purchase has been awaiting for confirmation since 1972, and when the so-called pending applications filed under

special enactments have no bearing on the confirmation of sale which has been ordered.

In the two decisions of the Supreme Court, the existence of remedies provided under special enactments to set aside a court auction sale, had

not been adverted to. Under Rules 89 to 91 of Order 21, a court auction sale could be set aside on the judgment-debtor depositing in court a sum

equal to 5 per cent of the purchase money fetched at the sale besides the amount specified in the proclamation of sale for the recovery of which the

sale was ordered less any amount which might have been received by the decree-holder since the date of sale.

Under Rule 92(2), court is obliged to make an order setting aside the sale, if a proper application under Rule 89 is made accompanied by a

deposit within 30 days from the date of sale. Apart from Rule 89, a judgment-debtor has a right to apply to court to set aside the sale on the

ground of material irregularity or fraud in publishing or conducting it, provided he can satisfy the court that he has sustained substantial injury by

reason of such irregularity or fraud. Under Rule 91, it is open to the purchaser to apply to the court to set aside the sale on the ground that the

judgment-debtor had no saleable interest in the property sold. Rule 92 provides that where no such application has been made but disallowed,

then the court shall make an order confirming the sale and thereupon the sale shall become absolute.

When an auction sale held in a civil suit could be set aside under provisions made in special enactments, which incorporate all or some of the

aspects covered by Rules 89 to 91 of Order 21, then the court is equally bound to await disposal of such applications, before an order of

confirmation could be made. It is not as if proceedings taken under the CPC in bringing a property of a judgment-debtor to sale could not be

touched upon or covered by provisions made under special enactments. When certain special enactments, under certain circumstances, envisage

notification of decree passed by civil Courts or execution taken being closed or confirmation of sale being set aside on payment of only a portion of

the decree amount and the like, they stand on a similar footing as that of Rules 89 to 91. An order of confirmation has certain consequences to

flow out of it, and in extending relief under special enactments, it has a determinative effect upon rights to claim reliefs and the like. Hence, when, in

law under special enactments, applications could be filed for setting aside a court auction sale which is awaiting confirmation, a civil Court would

not be right in confirming a sale by confining its attention only to Order 21, Rule 92. C.P.C. While passing an order, a court is duty bound to take

note of changing laws and the rights which have been conferred on litigating persons under different enactments, and which have a bearing and a

nexus to the orders to be passed under co-related enactments. Hence, this Court considers that, before even an order is passed under Order 21,

Rule 92 C.P.C, if it is brought to the notice of the Court that reliefs conferred under special enactments seeking to set aside the court auction sale

have been invoked, and such petitions are pending, a formal order of confirmation cannot be passed, because a civil Court is confined not only to

the CPC but has to enforce the provisions of special enactments which embrace the property involved in the court auction sale held in a civil suit.

Mr. M. Srinivasan, learned Counsel for auction purchaser, would then plead that application filed by Neelambal u/s 19 of Act 38 of 1972 to set

aside the sale would have no bearing on the matter. Equally, with regard to the application filed by Valambal under Act 13 of 1980, he takes the

similar stand. As for E.A. No. 380 of 1981 filed by Santhanam, another heir of the judgment-debtor under Order 34, Rule 4 C.P.C, he submits

that unless the entire amount had been deposited into court, as held in Seth Nanhelal v. Umrao Singh, 60 M.L.J. 423 : 33 L.W. 449 : (1931)58

I.A. 50 : AIR 1931 F.C. 33, such an application is not maintainable.

Proceedings instituted by Neelambal under Act 38 of 1972 are still pending disposal consequent to orders of remand passed by this Court in

S.S. Muley Vs. J.R.D. Tata and Others, , and the matter was posted to 22-2-1982 along with Execution Petition. The application filed by

Valambal was also posted to 23-2-1982. Equally, the application filed by Santhanam was also posted to 23-2-1982. Except the claim that these

proceedings are fruitless proceedings, no conceivable contention is put forth before court to show, as to how a matter remanded by this Court to

be disposed of by the court below is a redundant one and the order of confirmation passed is not adverse to the pendency of these proceedings.

When the learned Subordinate Judge was quite conscious and aware that these applications were to be heard on 23-2-1982, it was unnecessary

on his part to pass an order on 12-2-1982 just 5 days earlier to the date of hearing, in spite of stating that the applications filed for setting aside the

court auction sale was to be heard on 23-2-1982. Learned Counsel for petitioners relies upon S.V. Ramalingam and Others Vs. K.E.

Rajagopalan and Another, , regarding scope of Order 34, Rule 5. It was a case wherein an application was filed under Order 34, Rule 5 when the

appeal was pending, and it was held that pendency of appeal had led to the finality of sale set at large, and hence, Order 34, Rule 5 could be

availed for redeeming the mortgage. He also refers to V.S. Subramania Asari Vs. Ramaswami Pillai, , which took the view that passing of an order

of confirmation under Order 21, Rule 92 alone, could make it absolute.

When applications filed under special enactments were pending and which deserved to be heard for determining the rights of parties, the order

of confirmation of sale being premature, it results in the said order being set aside and the revision petition allowed. No costs.