V.S. Subramania Asari vs Ramaswami Pillai

Horwill, J.—The respondent in this application is the mortgagee and the petitioner the mortgagor. The mortgagee brought a suit for sale and

obtained a preliminary decree and then for a final decree. A sale of the property was held and 32 days later the petitioner put in an application

purporting to be under Order 21, Rule 89, to set aside the sale, depositing the whole mortgage amount plus five per cent, for the auction-purchaser

and costs. The Court held that under Article 166 (although the provision of the Limitation Act is not mentioned) the application was not in time and

dismissed it. The petitioner then filed a review petition stating that his application was not one under Order 21, Rule 89, but one under Order 34,

Rule 5. No serious objection to the hearing of this review application was made on the ground that a review did not lie and after full discussion of

the applicability of Order 34, Rule 5, Order 21, Rules 89 to 92, and Article 166 of the Limitation Act, the Court passed an order dismissing the

review petition. Against the order on the review petition, this Civil Revision Petition has been filed.

It is argued in support of the lower Court''s order that a review petition before a judge other than the one who passed the first order was not

maintainable; but I do not think that that is now of any great importance because no serious objection was raised on this ground before the lower

Court and the Court dismissed the application not on the technical ground but on the ground that under Order 21, Rule 92 and Article 166 of the

Limitation Act the original application was properly dismissed. The petitioner could no doubt have filed a Civil Revision Petition against the original

order, with another petition to excuse delay and under the circumstances, in view of the fact that he had been bona fide engaged in the prosecution

of the review petition, the delay would most probably have been excused. He would of course have adopted that procedure if the learned District

Munsiff had dismissed the review application on the ground that a review did not lie. In view of the fact that the District. Munsiff went into the point

fully in the second application and there was no consideration of the applicability of Order 34, Rule 5 in the first application, a Civil Revision

Petition was not unnaturally preferred against the second petition. The mere fact that the petitioner preferred to file a Civil Revision Petition against

the order passed on the review application and not on the first order ought not to preclude this Court from passing an order which it deems to be in

the interests of justice.

On the question as to how far Order 34, Rule 5 modifies the procedure to be adopted in applications to set aside sales, I think it must first be

stated that Article 166 a general provision applying to many applications under the Code and not only to applications under Order 21, Rules 89 to

91, cannot override the special provisions of any particular section or rule of the Civil Procedure Code, to the contrary. If therefore Order 34,

Rule 5 gives a time other than that provided by Article 166, the special provision must prevail. Order 34, Rule 5 states that where at any time

before the confirmation of the sale made in pursuance of a final decree certain moneys are deposited in Court, the plaintiff shall be ordered, to hand

over the document referred to, in the decree and do other things which are necessary to support the defendant''s title to the hypothecated property.

The learned District Munsiff says that under Order 21, Rule 92, the Court, in circumstances like the present as well as in general where the

application has not been put in under Order 21, Rules 89 to 91, is bound to order confirmation of the sale. That no doubt is a correct interpretation

of Order 21, Rule 92; but the fact remains that until that order is passed no confirmation takes place, and, as will be seen, from the wording of

Order 21, Rule 92 and Section 65, Civil Procedure Code, until confirmation takes place the sale does not become absolute, which means, as

various decisions have laid down, that the property remains with the judgment-debtor. It is argued that where Order 34, Rule 5 speaks of the

confirmation of sale, it must mean the date on which the sale can be confirmed. That is not what Order 34, Rule 5 says. I see no reason why the

section should not be given its plain interpretation. The District Munsiff seems to be of opinion that as the Court is bound to confirm the sale after

30 days, the sale automatically becomes confirmed after 30 days. That argument might be valid if the wording of Order 21, Rule 92 did not make

it clear that automatic confirmation did not take place. Order 21, Rule 92 contemplates the passing of an order of confirmation and it is the passing

of this order which makes the sale absolute; so that it is not the lapse of 30 days that confirms the sale but the passing of an order which cannot be

passed within 30 days. I am therefore of opinion that the District Munsiff was wrong in holding that this application was out of time. It was made

before the sale had been confirmed and therefore under Order 34, Rule 5, the Court was bound to order the plaintiff to receive the sum of money

tendered and to give up the documents contemplated by Order 34, Rule 5 which support his title.

As all these proceedings have been instituted in a large measure on account of the negligence of the petitioner, I think it would be unfair to mulct

the respondent with all the costs. The petitioner will get his costs in this Court but in the other proceedings each party will bear his own costs.