Varadarajan vs Muthu Venkatapathi Reddy and Others

Krishnaswami Nayudu, J.—In O. S. No. 20 of 1937 on the file of the District Court of South Arcot a mortgage decree was passed on 6-1-

1939 for a sum of Rs. 3540-15-4, the mortgagee being the first defendant and the 2nd defendant being his minor son represented by the father 1st

defendant as guardian-ad-litem. One Muthu Venkatapathi Reddiar as the assignee-decree-holder brought the mortgaged property to sale, the

sales having been held on 11th and 12-9-1944, and three parsons Mahadeva Goundan, Natesa Goundan and Swami Kannu Goundan and the

decree-holder purchased the property at the auction. M. P. No. 302 of 1944 was filed on behalf of the minor second defendant for setting aside

the sale under Order 21, Rule 90 and Section 47, C. P. C. Mainly on the ground that there was no proper advertisement and publication of the

sale and that the property which was of the value of about Rs. 16.000 fetched a low price of about Rs. 6442. Sufficient security in Immovable

properties was furnished on behalf of the second defendant-petitioner and during the pendency of the petition the 2nd defendant having become a

major he was declared a major and he elected to proceed with the petition, executed a fresh security bond and registered it and the petition was

posted for enquiry to 10-4-1945. The Court having been engaged in sessions work on that day the petition was adjourned to 10-7-1945. The

petitioner was called on 10-7-1945 and found absent and his vakil reported no instructions with the result the petition was dismissed. From the

endorsement on the petition it is seen that the advocate asked for adlournment, the adjournment was refused and the petition was dismissed. On

12-7-1945, the Court passed an order confirming the S3le. The petitioner filed a petition under Order 9 and Section 151. C. P. C. for setting

aside the order of dismissal but the same was dismissed on the ground that such an apn''ication does not lie. Then he appealed to the High Court

against the order of dismissal of M. P. No. 302 of 1944 in C. M. A. No. 447 of 1945 and by order of the High Court dated 28-3-1946 the

District Judge of South Arcot was directed to restore the petition, M. P. No. 302 of 1944, on the petitioner paying to the respondents a sum of

Rs. 500 as and towards their costs upto that date within one week of the reopening of the District Court. There is a further direction that the

District Judge shall dispose of the petition on the merits in the light of the observations contained in the judgment. In the judgment, the learned

Judge observed that the petitioner was a college student and his antecedent conduct with reference to the petition did not Justify the view that he

was really unmindful of the petition and did not care as to what happened to it and that he should be given an opportunity to satisfy the District

Judge that he had good grounds for non-appearance on the date of the hearing and that his petition was not a frivolous or vexatious one. The

learned Judge''s order proceeds as follows:

If the appellant pays within one week of the reopening of the District Court, Cuddalore, to the respondents a sum of Rs. 500 as and towards their

costs of the proceedings held so far, to be retained by them in any event and irrespective of the result of the petition, the order of the lower Court

will stand set aside and the petition will be restored to file and disposed of according to law. The District judge will first go into the question,

whether the appellant had satisfactory grounds for being absent on 10th July, which is the subject-matter of the miscellaneous petition filed by the

appellant for the restoration of the petition under Order 21, Rule 90, C. P. C. which was dismissed for default. If he is satisfied that the appellant

had good grounds for non-appearance, the petition will be dealt with on its merits"".

The petitioner complied with the order for costs and it is found from the endorsement on the petition, that M. P. No. 302 of 1944 was restored

to file on 27-8-1946. On 13-8-1946 the petitioner paid into Court the amount due under the decree and on 27-8-1946 he filed M. P. No. 187 of

1946 for vacating the order of confirmation of sale made on 12-7-1945. On 31-8-1946, the petitioner filed another petition M. P. No. 213 of

1946 under Order 34, Rule 5, C. P. C. and asked for setting aside the sales. All these petitions were heard and orders were passed on 25-2-

1947 dismissing them. C.M.A. No. 117 of 1947 is against the order dismissing M. P. No. 302 of 1944, which was restored to file and which was

for setting aside the sale under O- 21, R. 90, C. P. C. C. M. A. No. 355 of 1947 is against the order dismissing M.P. No. 187 of 1946 filed for

vacating the order of confirmation and C.R.P. No. 390 of 1947 is against the order dismissing M. P. No. 213 of 1946 filed under Order 34, Rule

5, C. P. C.

It is contended on behalf of the 2nd defendant-appellant that the learned District Judge erred in dismissing the petitions both on grounds of fact

and of law. It is urged that M. P. No. 302 of 1944 having been directed to be restored to file by the High Court in its order in C. M. A. No. 447

of 1945 and accordingly restored by the District Court by its order dated 27-6-1946, the confirmation of sale made on 12-7-1945 after the

disposal by the District Court on 10-7-1945 of M P. No. 302 of 1944 would stand automatically vacated and that, in any event, the learned

District Judge erred in not vacating the order of the confirmation even on the application M. P. No. 187 of 1946 filed by the appellant. Further, ft

is urged that the learned District Judge erred in dismissing M. P. No. 302 of 1944 and that the evidence adduced did not justify the conclusion

arrived at, namely, that the appellant had not sufficient cause for his failure to appear on 10-7-1945.

It may be convenient to consider the order of dismissal on the merits before dealing with the other question raised. The direction of the High

Court to the District Judge is that he should go into the question whether the appellant had satisfactory grounds for being absent on 10th July and if

the District Judge was satisfied that the appellant had good grounds for non-appearance, he could proceed to deal with the application on its

merits. From the conduct of this petition prior to the date of dismissal it will be seen that security was furnished while he was a minor and after he

became a major he himself elected to proceed with the petition and further filed a security bond by himself. For the first time the petition was

posted and came up for hearing on 10-4-1945 and on the ground that the Court was engaged with sessions work it was adjourned to 10-7-1945.

In fact that was really the first day of the hearing.

The appellant was a student in the Honours class in the Annamalai University and the college reopened on 3-7-1945 and therefore he had to go

away to the college. He says he informed his erstwhile guardian Natesa Goundan that he would go to the college and his guardian told him that he

would take the witnesses on the date of the hearing. He says that he trusted him and went to the college, but later he found that Natesa Goundan

committed fraud in collusion with the purchaser and while he took the witnesses to the Court, he did not take them to the house of the vakil and

made them return on the representation that the case was adjourned. P. Ws. 2 and 3 are the witnesses who say that they attended the Court on

10-7-1945 and that Natesa Goundan did not take them to the advocate but left them in the Court compound under a banyan tree and after some

time came and represented that the petition stood adjourned to 13-7-1945 and thereafter they returned. Excepting a minor discrepancy in the

evidence of these witnesses as to whether they returned by bus or by walk, substantially the evidence of these witnesses supports the case of the

appellant that in so far as these witnesses were concerned, they were present in Court and the hearing of the petition could have been proceeded

with even in the absence of the appellant and since the appellant was a minor at the time of the sale he could not have been of much help in adding

to the evidence of these witnesses. Respondent 3, examined himself as R. W. 1, and from the printed copy of his evidence it is found that he stated

that he had come to Court with his witnesses on the hearing date (10-7-1945), and that both Natesa Goundan and P. Ws. 1, 2 and 3 came. But

the learned District Judge in his judgment while referring to the evidence of R. W. 1 mentions R. W. 1 as having stated that on that day neither the

guardian of the petitioner, Natesa Goundan, nor P.Ws. 1, 2 and 3 came to Court. There is this discrepancy in the evidence as recorded and the

evidence as understood by the learned Judge. If the witnesses were present as stated by R.W. 1, then there could be no ground for holding that

the appellant was not ready to go on with the enquiry. But, whatever may be the evidence of R. W. 1, we find it difficult to reject the evidence of

P. Ws. 2 and 3, against whom nothing is alleged as being in any way interested in the appellant and both of them have sworn that they came to

Court but were made to wait in the compound and had to return on the false representation of the erstwhile guardian of the appellant that the case

had been adjourned. The learned Judge does not disbelieve the evidence of the appellant as P. W. 1. It appears to us that the appellant had made

arrangements for the conduct of the enquiry, and relied upon Natesa Goundan to take the witnesses and, in our opinion, it would be sufficient to

hold that he was diligent and by reason of the opening of the college he had sufficient cause to be away. It is unlikely from the way in which the

petition was conducted that having furnished security and after taking every step including securing the attendence of the witnesses, the appellant is

likely to have allowed the petition to go by default. Further, the direction of the High Court is that the District Judge should give an opportunity to

the appellant to show that he had good grounds for non-appearance on the date of the hearing and that his petition was not a frivolous or vexatious

one. We are of opinion that there was sufficient cause for his non-appearance and that in no view could it be held that the petition was a frivolous

or vexatious one. The learned District Judge should not have dismissed the petition, without further considering the question whether it was a

frivolous or vexatious one. The order dismissing M. P. No. 302 of 1944 is therefore liable to be set aside.

In view of the restoration of M. P. No. 302 of 1944, the petition under Order 21, Rule 90, C. P. C. by the order of the District Judge endorsed

on the petition itself dated 27-6-1948 in pursuance of the order of High Court and in view of our order setting aside the order of dismissal of M. P.

No. 302 of 1944 it is necessary to consider whether the confirmation of sale made on 12-7-1945 continues to be effective or, as it is urged on

behalf of the appellant, became automatically vacated.

Order 21, Rule 92 provides that where no application is made under Rule 90, or where such application is made and disallowed, the Court shall

make an order confirming the sale, and thereupon the sale shall become absolute, and where such application is made and allowed, the Court shall

make an order setting aside the sale. By reason of the restoration of M. P. No. 302 of 1944, the position is that the application under Order 21,

Rule 90, must be deemed to be pending and not disposed of. The confirmation of the sale could only be after the disallowance of that application

and not at any time during its pendency. The confirmation in the present case was made on 12-7-1945 after the dismissal by the District Judge on

10-7-1945 of the petition for setting aside the sale. The confirmation was then perfectly in order. Could that order of confirmation though validly

made be said to have its effect even after the restoration of the petition? The decision of a Bench of this Court in -- ''Venkatanaraslmham v. Nagoji

Rao'', AIR 1946 Mad. 344 (A) is directly in point. In that case, there was an application for setting aside the sale on the grounds of certain

irregularities in the conduct of the sale. A compromise petition was filed by which parties agreed to the petition being allowed on part of the decree

amount being paid. The judgment-debtor deposited the sum and applied for setting aside the sale under Order 34, Rule 5. When the petition under

Order 34, Rule 5 came up for hearing, the judgment-debtor-petitioner was absent and it was dismissed for default and the sale was confirmed.

Two applications were filed by the judgment-debtor for setting aside the orders dismissing the application for default and the orders of dismissal

were set aside in those applications. The judgment-debtor also by way of abundant caution, as in the present case, filed another application for

setting aside the confirmation of sales. The learned Judges held that the effect of setting aside the orders of dismissal for default operates

automatically to set aside the orders of confirmation of the sales.

In -- Charitter Shukul Vs. Lal Behari Singh and Another, an application was filed on behalf of a minor judgment-debtor for setting aside the sale

and a compromise was effected on his behalf whereby the application was withdrawn and the sale was confirmed. In a suit subsequently filed on

behalf of the miner the compromise itself was questioned and set aside. By reason of setting aside the compromise it was held, that the declaratory

decree holding the compromise to be not binding on the minor, all that follows therefrom including the order confirming the sale must also be null

and void.

To a similar effect are the observations of Abdur Rahim O.C.J. in -- ''Muthu Korakki Chetti v. Mahammad Madar Ammal'', AIR 1920 Mad 1

(C) . The question that arose in that case was as to the time from which the period of three years had to be computed under Article 180, Limitation

Act and therefore it was necessary to find when the sale became absolute. At pp. 5-6,the learned Officiating Chief Justice observes:

Even without the help of the Privy Council rulings which I shall presently notice, I should answer that in the given circumstances, the sale did not

become absolute until the petition made to set it aside had been disallowed. Rule 92 has primarily in contemplation cases where the application to

set aside the sale is made within the limit of thirty days allowed by the law so that any order confirming the sale would be ordinarily made after the

disposal of such applications. But if the Court in this case was justified -- and I take it that it was in entertaining the application to set aside the sale

after it had made the order confirming the same, can it be said that, whatever be the result of the application, the order confirming the sale remained

effective so as to make the sale absolute, from the date on which it was drawn up? To my mind, obviously not. The effect of entertainment of the

application to set aside the sale after the order of confirmation must, having regard to the intention of the Legislature as disclosed in this rule and

quite apart from any general theory in such connections be to render the order ineffective so as to make the sale absolute.

It is clear from the language of Order 21, Rule 92 that the Court can confirm the sale only if there has been no application under Rule 89, Rule

90 or Rule 91 filed within the period of 30 days from the date of the sale and if within the period of 30 days there is such an application and such

application is disallowed the Court shall then confirm the sale. But at any time within 30 days after the sale or during the pendency of an application

under Order 21, Rule 89, Rule 90 or Rule 91, the Court has no power to confirm the sale and such confirmation could not be valid. That the

power of the Court to confirm is dependent upon the existence and pendency of an application under Rule 89, Rule 90 or Rule 91 or the

disallowances of such application receive further support from the observation of Abdul Rahim, Offg. C. J., in the case referred to that the Court

allows the judgment-debtor to file an application after the expiry of the period of 30 days after the confirmation of sale, still when such an

application has been filed the confirmation made earlier becomes ineffective, the reason being that the pendency of an application is a bar to the

confirmation being made or remaining effective.

It is urged by Mr. Gopalaswami Aiyangar that on the language of Order 21, Rule 92, it cannot be held that there could be any automatic

vacation of the confirmation once made, since on the failure to make an application or disallowances of such an application the sale does not

become automatically confirmed, but the Court shall make an order confirming the sale and if the Court makes an order confirming the sale it could

not stand automatically vacated, but the Court should again pass an order vacating the confirmation. The principle under which it could be said that

by reason of the restoration of a petition for setting aside the sale, the confirmation made earlier would stand automatically vacated is that laid

down in the Privy Council decision in ---''Shama Purshad v. Hurro Purshad''. 10 Moo Ind App 203 (D) where it was held that certain orders and

decrees which are subordinate and dependent upon earlier orders and decrees could remain in force so long as the order or decree on which they

were dependent are not reversed or superseded. They are dependent decrees and orders and when the decrees or judgment on which they

depend arc reversed they could continue to remain in force. It is urged that this principle cannot be made applicable since even the absence of an

application for setting aside the sale within the period prescribed by law would require the Court to make an order for confirmation. If only an

application to set aside the sale is filed and such an application is disallowed that order might be held to enable the Court to confirm the sale and

when that order disallowing the sale is subsequently reversed in appeal, the confirmation which is dependent on the original order might be

considered to have been superseded. But the same argument would not be available where there was no application at all. It is true that Order 21

Rule 92 contemplates two contingencies: . (1) the absence of any application and (2) an application and disallowance thereof and it is only in the

latter case, the order of confirmation may be considered to be dependent on an order of Court. But it cannot be ignored that under Order 21 Rule

92 the order of confirmation is a dependent order depending not only on an earlier order of Court but also on certain circumstances existing or not

existing, namely there being an application for setting aside the sale or not. The principle in ''Shama Purshad Roy Chowdhry''s case'' has direct

application in other cases for instance in the case of a preliminary and final decree where the final decree is passed and subsequently the

preliminary decree is set aside in appeal, the result of which would be the final decree becomes superseded. Also in suits filed under the summary

procedure when an application for leave to defend is rejected and a decree is passed, subsequently when leave to defend is granted, the decree

passed would become vacated. Similarly in cases of an ex parte decree and the result of an allowance of an appeal against it. Even if that principle

of dependent orders and decree laid down in ''Shama Purshad Roy Chowdhury''s case'' cannot be held to be completely applicable to cases

arising under Order 21 Rule 92, we have no doubt that the order of confirmation is a dependent order and the restoration therefore of a petition

under Order 21 Rule 90 would make the confirmation already made ineffective. Such an order of confirmation may be treated as ineffective or

automatically vacated as observed by the learned Judges in ATR 1946 Mad 344 (A) or even may be considered to be null and void as held by the

Allahabad High Court in ATR 1934 All 433 (B), the net result being that such order continues to have no legal effect or force.

It is further urged by Mr. Gopalaswami Aiyangar that the order of confirmation made on 12-7-1945 had not been set aside in appeal and that

the High Court in allowing the appeal filed against the order in M. P. No. 302 of 1944 dated 10-7-1945 should also have made an order setting

aside the confirmation. But this argument ignores that an order of confirmation is not one of the orders enumerated under Order 43, C. P. C.

where there is a right of appeal. Further, the order of confirmation is subsequently made on 12-7-1945 and not part of the order dated 10-7-1945

dismissing the petition and as such the appellant could not have raised an objection to the order even u/s 105, C.P.C. In the view we have taken it

is unnecessary for the Court in such circumstances to pass even a formal order setting aside the confirmation, since the confirmation would cease to

have any legal effect, in any event, the appellant had applied in M, P. No. 187 of 1946 for vacating the order of confirmation and that application

being stated to have been filed out of abundant caution should have been ordered.

In the result C.M.A. Nos. 117 of 1947 and 355 of 1947 are allowed. C.R.P. No. 390 of 1947 is against the order dismissing, the appellant''s

application under Order 34, Rule 5, C. P. C. which was dismissed for the reason that M. P. Nos. 302 of 1944 and 187 of 1946 have been

dismissed. By reason of the setting aside of those orders, this petition is allowed. The appellant will have his costs in C. M. A. No. 117 of 1947

from the respondent purchasers. M. P. No. 302 of 1944 and M. P. No. 213 of 1946 are remanded to the lower Court for disposal according to

law.