Shanmugham and others vs Perumal Naicker and others

This Appeal is by defendants 2 to 4 and 10 in O.S. No. 648, of 1986, on the file of Subordinate Judge, Pondi-cherry. Reference to the parties

in this Second appeal will be as per the array in the suit, for the sake of convenience.

Plaintiff filed the above suit for the following reliefs :--

(a) Declare that the auction sale purported to have been held as per auction judgment dated 4-1-1972 in public auction suit No. 10/70 on the file

of Principle Sub Court, Pondicherry is null and void and incapable of creating any interest in favour of the said auction purchaser referred to

therein;

(b) Pass a preliminary decree for redemption of the mortgage dated .... and record discharge of the said mortgage and the title of the plaintiff being

free of discharge;

(c) Pass a decree of permanent injunction restraining the defendants from in any manner interfering with the possession and enjoyment of the suit

property or in the alternative for possession of the suit property in the event of this Hon''ble Court holding that suit property is in possession of the

defendants 2 to 4;

(d) Direct the defendants 5 to 9 to deliver the antecedant titles to the plaintiff;

(e) Direct defendants 5 to 9 to pay cost of this suit.....

Plaintiff filed the above suit, on the following averments :--

The property belonged to one Sabiyadal Bajsa Bibi. She mortgaged the property to secure loan of Rs. 17,000/- in favour of one Nataraja Chettiar

and executed a Notarial Deed by Mortgage. During subsistence of the mortgage, plaintiff purchased the property on 23-1-1962 for a

consideration of Rs. 23,000/-and the plaintiff became mortgagor. It is said that the plaintiff was paying interest on the mortgage amount to Nataraja

Chettiar, and in 1968 there was some delay in payment of interest and, therefore, the mortgagee Nataraja Chettiar preferred proceedings in Vents

No. 65/68 on the mortgage. Plaintiff also filed proceedings pointing out his existence of interest in the property and the proceeding which was

subsequently taken in public auction, Suit No. 10/70 on the file of Sub-Court, Pondicherry ended on 4-1-1972 with the conduct of an auction for

a bid amount of Rs. 33,175/-. In accordance with French CPC and not in accordance with Civil Procedure Code, 1908. It is further averred that

on 5-9-1968, the CPC was extended to Pondicherry, and thereafter, any proceeding in execution shall be only under the Indian Civil Procedure

Code, 1908. It is further said that in the auction proceedings, the bid was made by defendant as per the procedure under the Franch Code and

declaration was made that the said bid was on behalf of the first defendant in the suit. Tt is alleged that the advocate who bid at the auction was still

engaged by him to defend his case. The said Counsel, after the bid, made a declaration in view of the close relationship with the mortgagee.

Plaintiff, without prejudice to his contentions, challenged the same since no amount was deposited pursuant to the auction. In the meanwhile, first

defendant herein sought delivery of the property without any notice to the plaintiff, and thereafter claimed to have taken delivery. It is said that even

though she claimed to have taken possession, no money was deposited. On the contrary, after 10 years, document was executed by the first

defendant as on 9-11-1981 in favour of defendants 2, 3 and 4, purporting to have conveyed her interest in favour of defendants 2 to 4. In that

document, first defendant has admitted that she has not deposited any amount, and subsequently defendants 2 to 4 discharged the debt by paying

the legal representatives of Natarajan Chettiar. The legal representatives of deceased Natarajan Chettiar were also impleaded as defendants 5 to

Some other amount was also paid to others without any demand. It is said that the entire proceedings of auction was fraudulent and contrary to

law. Plaintiff, being a holder of title, is entitled to avoid the same, since, according to him, the auction is bad in law. According to him, the property

which could have easily fetched at least Rs. 75,000/- was sold for a sum of Rs. 33,175/-. The confirmation of the auction was on 4-1-1972. The

plaintiff filed a Revision against the auction, but subsequently withdraw it. The property also became dilapidated and ruined. The property also

became dilapidated and ruined. The tenants alone are residing there. According to the plaintiff, since there is no valid auction, the title of the

property will not be affected, and, therefore, he seeks redemption on payment of the mortgage amount.

In the common written statement filed by defendants 1 to 4, they challenge the right of the plaintiff to seek redemption. According to them, the

entire proceedings have been initiated under the Franch Code, in accordance with law. They have further stated that no amount need be deposited

in Court pursuant to the auction. The requirement was only payment of expenses, and the same has been complied with. The auction was held

rightly, and thereafter they have discharged the debt. It is said that the plaintiff, who was not able to pay in suits of several adjournments, filed E.A.

87 of 1970, seeking six months time and permission to sell the property privately to discharge the creditors. By judgment dated 28-4-1970, the

Court was pleased to allow the said petition and to grant three months time to the debtor, the Plaintiff, and the sale was posted for full payment on

28-7-1970. The plaintiff did not either sell the property privately or pay the amount on the adjourned date. He wanted only adjournment after

adjournment.

On 15-10-1970, the Court ordered sale and the property was sold in auction. One Sambasiva Rao was the successful bidder, and he purchased

the property through a counsel for Rs. 25,095/-. It is said that under Franch Law, if there is an offer for higher bid, the property has to be resold.

One Kuppusamy Gramany, assisted by his counsel P. Chandra-sekaran, made a declaration that he is willing to purchase the property for Rs.

29,280/-. On the basis of the said offer, a fresh publication was made. Plaintiff again sought adjournment for payment. On 17-10-1970, an

advocate appeared for the Plaintiff and prayed for adjournment. Finally, on 4-1-1972, the property was sold in public auction and the same was

taken delivery on 9-3-1972. It is further stated there was proceedings u/s 145, Cr.P.C., when there was dispute regarding possession. The Sub

Divisional Magistrate, on 21-3-1972, forbid the plaintiff from interfering with the first defendants''s lawful possession. It is said that the plaintiff

moved a Revision against that Order, which also failed. It is further said that if the sale price is not paid, the creditor has to follow the procedure

under French Code, and till it is resold, the auction purchaser is the owner. Under Article 1583 of the Code Civil, the sale is complete and the

ownership is transferred to the purchaser even though the price was not paid. The auction purchaser may keep the sale price with him until demand

is made subject to payment of interest at 7% per annum and the sale does not become null and void on account of non-deposit of payment. It is

also said that the suit is barred by limitation, and that the defendants have prescribed adverse possession.

The trial Court took oral and documentary evidence, and, as per judgment dated 8-9-1989, dismissed the suit with costs. The trial Court was of

the view that the plaintiff has challenged the auction in various proceedings, and having been unsuccessful, again agitated the suit auction. It also

came to the conclusion that the defendants had paid the amount to the mortgagee pursuant to auction. Even the case of adverse possession was

found in favour of the defendants. It was also found that the defendants came into possession of the property. It held that the auction held on 15-

10-1975 is perfectly valid, and the Plaintiff is not entitled to any relief through Court.

Aggrieved by the Judgment of the trial Judge, Plaintiff preferred A. S. No. 149 of 1989 before the Second Additional District Judge,

Pondicherry. The Lower Appellate Court reversed the finding and held that the sale is null and void. It was of the view that fraud had been

committed by defendants. It was also of the view that in non-deposit of the amount vitiates the entire sale, and even the resale was effected without

notice to plaintiff and, therefore, invalid. It also said that the plaintiff has title to the property, and even possession is with him. A decree was

granted as prayed for, for redemption.

It is against the Judgment of the Lower Appellate Court, the appellants herein have preferred this Second Appeal.

At the time of admission of the Second Appeal, the following substantial question of law was formulated for consideration:--

Whether there is an error of law committed by the lower appellate Court, in holding that the auction sale of the suit property was invalid, in view

of the appellants'' assertion that the property in question was attached on 16-3-1963 and thus a proceeding started before the CPC came into

force, under the French Code Vivil, which proceeding continued unaffected by the procedure in the CPC ?

At the time of argument, learned counsel for the first respondent submitted that his client has already deposited the mortgage amount in Court

pursuant to the preliminary decree in time.

The main question to be considered in this case is, whether the auction conducted under the French Code Civil is valid.

Pondicherry Extension of Laws Act, 1968 was passed on 24-5-1968. So far as the CPC is concerned, it is paid that the same will be made

applicable as in force in the State of Madras, as on 1-8-1966, with the modification after Section 45 by incorporating one Section as Section 45A,

which reads thus:--

A.Execution of decrees, etc., passed or made before the commencement of the Code of Pondicherry:--

Any Judgment, decree or order passed or made before the commencement of this Court by any Civil Court in the Union Territory of Pondicherry

shall, for the purpose of execution, be deemed to have been passed or made under this Code :

Proviso: xx xx xx xx

It is not disputed that the CPC was extended to Pondicherry on 5-9-1968. It is held in Susama Bala Sur Vs. Bibhuti Bhusan Mondal, that the

Grosses copy of a Notarial Mortgage Bond; executed under the French Law has the force of a decree, and the same could be executed under the

Code of Civil Procedure. While dealing with the same, in paragraph 19 of the said Reports, a Full Bench of the Calcutta High Court has held thus

:--

The procedure in execution being a part of the adjective law must be governed by the procedural law prevalent at the time of execution that is to

say, the CPC of 1908. For, there is no vested right in procedure .....

The property was attached on 19-6-1968 and papers were transcript to Court for execution. Thereafter, Gazette publication was made only on

10-9-1968. Auction was also conducted long thereafter. It is the contention of the appellints that the Indian CPC has been made applicable to

Pondicherry from 5-9-1968, and, since attachment has been effected before that, proceedings initiated under the Pondicherry Code will have to

be continued only under that Law, and the Code of Civil Procedure, 1908 cannot apply to the sale conducted pursuant to the attachment effected

on 19-6-1968 since it gives a vested right, and the same cannot be divested. This, according to the learned"" counsel, is sufficient answer to the

judgment of the lower appellate Court wherein it held that only the Indian CPC can be made applicable. How far the said contention is correct, is

the matter to be considered.

In Anant Gopal Sheorey Vs. The State of Bombay, , the Supreme Court held as follows, while interpreting the effect of change in procedural

law (at p. 917 of AIR) :--

No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time

being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to

proceed according to the altered mode. In other words a change in the law of procedure operates retrospectively and unlike the law relating to

vested right is not only prospective.

In Mulla''s CPC -- 15th Edition (1996), at page 9, the learned Author has said thus :--

Every Statute which takes away or impairs vested rights acquired under existing law must be presumed to be intended not to have retrospective

operation but this presumption does not apply to enactments affecting procedure or practice, such as the Code of Civil Procedure. The reason is

that no person has a vested right in any course of procedure. The general principle indeed seems to be that alterations in the procedure are always

retrospective unless there be some good reasons against it .....

In Sir John Woodroffe & Ameer Alt''s ''Code of Civil Procedure -- 3rd Edition --Volume 1, at page 14, learned Authors have said thus :--

It is a general principle of law that a every statute, which takes away or impairs vested rights acquired under existing law, must be presumed to be

intended not to have a retrospective operation. But alterations in the procedure are always retrospective, unless there be some good reason against

it. The Code does not affect the power and duty of the Courts to act according to equity and good conscience in cases for which no express

provision is made. The new Code applies so far as procedure is concerned, to all cases which were pending or about to be instituted at the time it

came into force.....

In M.J. Delaflore and Another Vs. Amir Mohammad and Others, , a similar question was decided by a learned Judge of this Court.

Paragraphs 5 and 6 of the Reports, which are relevant for our purpose, read thus :--

Prima facie, the two sections of the Extension of Laws Act above referred to, namely, Sections 3 and 4 arc repealing and re-enacting provisions.

The pre-existing French Civil Code, which corresponds to the Indian Civil Procedure Code, is repealed u/s 4(1), and the Indian CPC is brought

into force u/s 3(3). Section 4(2) contains saving provisions framed in terms closely analogous to Section 6 of the Genera! Clauses Act (Act 10 of

1897). Learned counsel for the petitioners lays particular stress upon Section 4(2)(d) of the Extention of Laws Act which is similar to Section 6(e)

of the General Clauses Act. He urges that the provision in Section 4(2)(d) of the Extension of Laws Act, which permits a pending legal proceeding

previously instituted to be continued as if the later Act had not been passed, would give jurisdiction for dealing with that proceeding under the

French Civil Procedure Code.

This argument appears to me to miss the entire point of the saving provision. The saving provision referred to, interpreted in the light of the general

provision governing the interpretation of statutes, would mean that the pending legal proceeding cannot be put an end to by reason of anything

enacted in the later law if the parity affected has a right to continue the legal proceeding under the repealed Act. What is saved by the saving

provision is only the right to continue the legal proceeding notwithstanding anything in the later enactment which may affect such continuance. But if

a particular procedure had to be followed under the pre-existing law in respect of that legal proceeding, but a different procedure is prescribed

under the later enactment, the legal proceeding, in so far as its further continuation is concerned, has to follow the procedure indicated in the new

law.

The reason for this, can be gathered from the general principles for the interpretation of statutes. For this purpose one can usefully refer to the

observations contained in ""The Interpretation of Statutes"" by Maxwell, 1962 Edition:

No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time

being, by or for the Court in which''he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed

according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right, for the defaulter can have no

vested right in a state of the law which left the injured party without, or with only a defective remedy.....

(Page 216).

The general principle, however, seems to be that alterations in procedure are retrospec tive, unless there be some good reason against it.

(Page 217)

At the same time. Maxwell has also laid down certain limitations to this rule. These are stated at page 219 thus :--

But a new procedure would be presumably inapplicable, where its application would prejudice rights established under the old, or would involve a

breach of faith between the parties.....

Where rights and procedure are dealt with together, the intention of the Legislature may well be that the old lights are to be determined by the old

procedure, and that only the new rights under the substituted section are to be dealt with by the new procedure.

What I have stated above would show that the problem of interpreting the repealing and saving provision in the Extension of Laws Act cannot be

dealt with in a general way. Nor can it be dealt with by giving a general direction that for all pending actions the old procedural law will apply. That

will mean going in the face of the statute. No Court can give such a direction. What will be really relevant is to determine if there is anything in the

old procedure in the nature of a vested right, a privilege, an obligation or a liability falling within the meaning of Section 4(2)(d) of the Act, and to

seek to preserve such right etc., whenever they are likely to be jeopardised by the application of the new procedural law. What such rights are

privilege, etc., cannot be stated straightway in a general reference of this kind. It must be considered in the circumstances of individual cases and

the law applicable to them. For example, questions may arise in regard to property rights which might become extinguished by the application of

the pre-existing law of limitation. Questions might arise about value of rights of appeal. There might be also question of procedure which would be

inextricably mixed with substantial vested rights. They can form an exception to the rule that laws of procedure are retrospective whereas laws

affecting vested rights are prospective. A general direction such as is now sought cannot obviously be given in this application as that will clearly

infringe the statute.

In Adaikappu Chettiar Vs. Ayesha Natchiar, , the question that came for consideration was, whether a person who is holding a mortgage

under the French Law is entitled to institute a suit under the Civil Procedure Code, 1908. It was held that it was. a privilege enjoyed by the person,

and he can choose to either proceed under the French Law or file a suit just like any other citizen in India. In the Reports, it was held thus (at p. 34

of AIR):

When a person, who enjoyed a privilege, filed a suit in the ordinary Civil Court on foot of a natural mortgage deed, it is the plain duty of the Court

to entertain it u/s 9 of the Indian Civil Procedure Code.

Even though the plaintiff might have had the alternative relief of enforcing the mortgage as if it were a decree without resorting to an action in a Civil

Court, undoubtedly the plaintiff shared with the other Indian citizens the right to file a suit on the mortgage deed in a Civil Court, obtain a decree

and then proceed to execute it.

In Balakrishnan Vs. Krishna Moorthy and Others, , a learned Judge of this Court held that under certain special circumstances of the case, the

French Law will have to be applied. While discussing the facts of that case, the learned Judge said that parly therein had a valuable right which will

be taken away if Indian Law is applied and, therefore, retrospective operation of the procedural law was not applied therein. In paragraph 12 of

the judgment, following an earlier decision of this Court reported in (1965) 2 MLJ 332 (Rama-swami, In re.), the learned Judge held thus (at p.

439 of AIR) :--

The decision in Ramaswami, In re. is relied upon for the following proposition -

It is a well-known principle of International Law that a foreign settlement, obtained in an inhabited country, by conquest or by cession from

another power stands in a different position from a settlement made by colonising, that is, peopling an uninhabitated country. In the latter case the

subjects of the country from which they emigrate carry with them the laws of the country of their origin, there being, of course, no lex loci. In the

former the law of the country to which they go continues until the Crown or the Legislature changes it.

This principle has been carried out successively in Sections of the French Establishments (Administration) Order, 1954, Section 4(2)(d) of the

Pondicherry (Laws) Regulation, 1963. By the force of these repealing and saving provisions the pre-existing French Law has become as much ''the

established law'' in force in the territory of India within the meaning of Article 13(8)(a) of the Constitution of India, as any other law for the Indian

Union, such as, the Criminal Procedure Code or the Penal Code. That the law thus given validity was originally a law in force in what was foreign

territory would not affect the question of its being an established law in the territory newly added to the Indian Union.''

In Mahalakshmi Vs. P.S Rajeswari alias Santha Bai, , the question that came for consideration was, when a mortgage deed was executed

under the French Law, whether the decree obtained thereon could be executed under the Civil Procedure Code. In paragraph 20 of the judgment,

a learned Judge of this Court held thus :--

The contention of Mr. Raghavan that since a special provision has been made, it excludes the applicability of the other provisions relating to

decrees under Civil Procedure Code, cannot be accepted because Section 45-A is confined only to a particular category of decree being decrees

passed or made by any Civil Court in Pondicherry. In view of the saving provision found in Section 4(2) of the Act, in spite of Section 45-A it will

be open to such a decree-holder to move the executing Court under the present provisions of the Civil Procedure Code, because what follows

such a decree are only procedural aspects, and no one can claim a vested right to a particular procedure, and in this view, the respondent can seek

the relief, according to the law in force at the time when she seeks the execution of the grosses copy of noterial mortgage deed executed when

French Laws were in force.

On the basis of the above settled position of law, let us consider whether the contention that since the judgment was before 5-9-1968, the

plaintiff was entitled to proceed under the CPC and not under the French Procedure can be sustained,

Plaintiff in this case is not challenging the decree, and he has no case that the Notarial Mortgage is not a decree under the French Law. His

only contention is that subsequent to the decree, if the amount is to be realised, that can be only in accordance with the procedure then in force.

Attachment is also a procedure for realisation and subsequent sale is also only a procedural law rangle in the process of realisation of the amount.

Under the privilege of the procedural law, the decree holder will not also get a vested right to proceed in accordance with law. I find that the said

submission by the learned counsel for the respondents has force. It cannot be disputed that the attachment is only a step in execution and

realisation of the fruits of the decree. We may note that the attachment is also not by the Court, but it is thereafter the papers are transcribed to

Court, and only when it comes to Court, the procedure applies. We find that the publica-tion was ordered on 2-9-1968 and the Gazette

Publication was made on 10-9-1968. In the meanwhile, the Code of Civil Procedure, 1908 was extended to the Union Territory of Pondicherry.

From .1968 to 1970, no sale took place, and the same was being adjourned from time to time. We must note that from 5-9-1968, advocates are

barred from participating in the auction. They cannot represent the party as bidders. Certain drastic consequences have also been provided under

the Code of Civil Procedure, 1908 in case the same amount is not deposited within the time stipulated by the Code. If the attachment is considered

as only a step in execution, naturally, it follows that proceeding under the French Law, after 5-9-1968, cannot be held as valid.

Learned counsel for the appellant strongly relied on the decision reported in Balakrishnan Vs. Krishna Moorthy and Others, . I have already

said that taking into consideration the facts of the case the learned Judge found that the auction purchaser has got a vested right. The same has

been explained in paragraph 16 of the judgment. Before 5-9-1968, Court auction proceedings started, and the party became Court auction

purchaser on 5-9-1968. Learned Judge says that this created a valuable right and also the liability to pay the difference between the price offered

and the price of final sale, in case of resale for the non-payment within time. This has created corresponding rights for the respondents in their

capacity as creditors and also in favour of other creditors of the appellant and ultimately for the appellant himself. If the changed procedure is given

effect at that stage, many of the rights and privileges acquired by diverse parties would be affected. Therefore, it was unsafe and unwise to make

radical changes at that stage. In view of that finding, learned Judge said that execution will have to be proceeded under the French Law. In this

case, at the time when the property was brought to sale, the appellants were not at all in the scene. On 16-10-1970, the property was sold to

Sambasiva Rao, and long after that, one Kuppusami Gramany offered a higher amount and reauction was ordered. It was only on 4-1-1972, the

sale also took place. It was only after Kuppasami Gramany moved for re-sale, purchasers came to the scene.

It is represented by learned counsel for the appellants that the respondents herein filed a Civil Revision Petition against the Order for sale, and

subsequently the same was withdrawn. According to the learned counsel, the dismissal of the Civil Revision Petition challenging the. sale before this

Court, concludes the matter and, therefore, the present suit is barred by res judicata or constructive res judicata. According to me, I cannot agree

with the said submission of the learned counsel.

If Indian Law is to be made applicable, the auction purchaser has to deposit 25% of the bid amount forthwith and the balance will have to be

deposited within 15 days. Order 21, Rules84 and 85, C.P.C. provide the same. The consequences of default are provided in the Rules itself. The

Rules say that the property shall be resold forthwith, and the auction purchaser will not be entitled to realise even the amounts which are deposited,

and he will also be prohibited from participating in the re-auction. In case the auction purchaser does not deposit 25% of the bid amount

immediately after the auction, the resale also will have to be held forthwith. It follows that there Was no sale at all in law.

In Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, , their Lordships said thus (Para 11) :--

Thus provisions of Order 21, Rr. 84, 85 and 86 requiring the deposit of 25 per cent., of the purchase-money immediately, on the person being

declared as a purchaser, such persons not being a decree-holder, and the payment of the balance within 15 days of the sale, are mandatory and

upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a stranger

purchaser without depositing 25 per cent, of the purchase-money in the first instance and the balance within 15 days. When there is no sale within

the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of

the defaulting purchaser renders the sale procesdings as a complete nullity. The very fact that the Court is bound to re-sell the property (Rule 86) in

the event of a default shows that the previous proceedings for sate are completely wiped out as if they do not exist in the eye oflaw.....

In Mool Chand Vs. Collector, Jalaun and Others, , it was held that the provisions of Order 21, Rr. 84 and 85, C.P.C. are mandatory, and in

the event of their non-compliance the execution Court or the officer conducting the sale has no other option but to re-sell the property. The period

provided for making the deposit cannot be extended. Where the deposit is not made by the auction purchaser, it is not necessary for the judgment-

debtor to file a petition for re-sale of the property, but there is an obligation and a duty cast on the execution Court or the Officer conducting the

sale.

In Ram Singh Vs. Uttam Chand, a Division Bench of that High Court held that even if the sale was confirmed by the High Court, if the amount

was not deposited, the sale is wiped off, and the executing Court is bound to re-sell the property. The Bench said that the sale becomes non est

and void, and there is no necessity of challenging the sale, nor can there be any question that the objections filed to impugn the sale were time

barred.

Our High Court also discussed the same point in the decision reported in Subbammal Vs. P. Gurusamy Thevar and Others, and held thus :--

The auction-purchasers were third parties and the proviso to Rule 85 of Order 21, had no application at all. In the present case, there was no

question of any period being fixed or granted by the Court for the doing of a particular Act. It was the statutory provision contained in Rule 85 of

Order 21, which made it obligatory on the part of th auction-purchaser to deposit not only the full amount of purchase-money but also the general

stamps within the prescribed period, namely, fifteen days from the date of sate. There was no provision in the Code which authorised the executing

Court to extend the abovesaid period of fifteen days. On the contrary, Rule 86 made it clear that if there was any default in payment within the

period prescribed in Rule 85, the property shall be resold and the purchaser should forfeit all claims to the property. Undoubtedly Rr. 85 and 86

were mandatory. The Court had no discretion in the matter. Of course, under Order 86, the executing Court was given discretion but that

discretion related only to the question whether the deposit already made (Under Rule 84) had to be forfeited or not. In the case of the decision in

Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, of the Supreme Court the executing Court was

entirely in the wrong in allowing the applications filed by the auction-purchasers. There was no provision in the Code for such extension of time.

The provisions of Rr. 85, 85 and 86 of Ordcr21 of the Code are mandatory and the Court had no jurisdiction to extend time.

If the contention of the appellants is to be accepted that the present suit is barred by res judicata or constructive resjudicata it will mean that

even if the appellants violate the provisions of Order 21, Rules 84 and 85, C.P.C., the sale becomes valid It will also mean that so far as they are

concerned, a special rule of law is made applicable. That is not the purpose of res judicata. Therefore, I reject the said contention.

Learned counsel further submitted that under the French Law, there was no necessary to deposit the amount and, therefore, the sale is valid.

I have already said that the procedure is only under the Civil Procedure Code, 1908. But, assuming for arguments sake that the French Law is

applicable, even then, the non-deposit of the amount will not make the sale valid, even under that Law. It is seen from various provisions of the

French Code Civil that once the sale takes place, various creditors will have to file their claim with notice to the judgment-debtors, and the amount

will have to be disbursed. Therefore, the amount must be made available for payment. Even though no specific period has been provided, law

presumes reasonable time. In this case, the property was also auctioned, but not a pie has been paid for more than ten years. That is not the

intention of a coercive sale. The judgment-debtor will be getting the benefit of discharge of the debt, once the auction is conducted and the amount

is paid. By not paying the amount to the creditor, even that benefit is not given to the mortgagor in this case. The mortgage debt will subsist till the

amount is paid. So, in spiie of the auclion, plaintiff continues to be a debtor, even though the security is lost for no fault of his. This, according to

me, is also one circumstances which goes against the contention of the learned counsel for the appellants.

Learned counsel for the respondents also submitted that even though originally Sambasiva Rao purchased the property in auction, for

subsequent proceeding, no notice was given to him. The circumstances under which Kuppusami Gramamy offered a higher amount and the

circumstances under which the appellants became auction purchasers were without notice. To substantiate the said contention, one circumstances

has been taken note of by the lower appellate Court. That is, in spite of the auction, plaintiff was paying the interest even thereafter. If the mortgage

debt had been wiped off by virtue of the auction, what was the necessity for him to pay the interest. These circumstances show that the property

belonging to the plaintiff has been taken away without his knowledge, and even though the property was sold to clear the mortgage debt, he

continued to be a debtor, even after the auction. The lower appellate Court has also found that the action of the appellant''s purchaser was

intended to deprive the plaintiff of the property, and the auclion was also conducted without his knowledge. A fraud has been perpetrated by the

appellants'' purchaser. His helplessness to discharge the debt in time was exploited by the creditor.

The lower appellate Court has held that the auction sale was tainted with fraud and the appellants cannot hold any benefit, which is the result of

their own fraud. On going through the facts, I feel that the said finding is justified, and has only to be confirmed.

Learned counsel further submitted that the appellants have prescribed title by adverse possession, and under French Law they need only ten

years to prescribe title.

I cannot agree with the said submsi-sion also. Once the sale is declared as null and void, it becomes non est. The plaintiff continues to be the

owner, and there cannot be any question of prescription. Even if we apply the principle often years, there must be a bona fide title, a title obtained

in bona fide manner. There is no title in law, and when the proceedings initiated by them are void, they cannot take refuge under these proceedings

and claim to have prescribed title. For these reasons, the said contention of the learned counsel for the appellants is also rejected.

No other point was urged by the learned counsel.

I find that the substantial question of law raised in this second appeal is only to be found against the appellants, and accordingly it is answered

against the appellants.

In the result, the second Appeal is dismissed with costs.

Appeal dismissed.