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First Appeal No. 6 of 1950, decided on 3rd February, 1953, from the decree of the Court of Sardar Atta Ullah, Senior Civil Judge, Rawalpindi, dated the 17th November, 1949.
Arguments‑Party, in absence of counsel, bringing certain facts to notice of Court by way of argument-- Counsel of such party appearing immediately on conclusion of argument‑Counsel may be heard as a matter of indulgence.
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Could not be consigned to record room merely on receiving intimation from Debt Conciliation Board that debt had been discharged, to prejudice of parties without notice to them.
The Sub‑Judge passed the order consigning the execution proceedings to record room in the absence of the parties and with out notice to them, merely on receiving an intimation from the Debt Conciliation Board to the effect that the debt had been dis. charged.
Held, that such an order could not dispose of the execution proceedings finally, to the prejudice of the parties. The execution proceedings appear to have been revived at the instance of, first the decree‑holder and then of the auction purchaser and that was a perfectly legitimate procedure, The previous order consigning the execution proceedings to the record room must be held to be of no effect in these circumstances.
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Irregularities‑Objections by mere trespasser may not be permitted to prevail against auction-purchaser armed with a sale certificate.
The respondents stood in the shoes of Abdur Rahim, a stranger to the litigation, who had failed in the independent claim to the property and consequently the respondents must be described its pure trespassers qua the property in suit. They have no locus standi to challenge the title of the appellant who is armed with a sale certificate, duly issued by the executing Court, relating to this property on the ground that during the proceedings culminat ing in the issue of that certificate some irregularities were com mitted or a wrong order was passed. Such an objection could possibly have been taken by any of the parties to these proceed ings but the respondents could not be permitted to call in ques tion the validity of those proceedings as throwing doubt on the prima facie title evidenced in favour of the appellant by the sale certificate, unless he showed some superior title in himself.
S. 25‑--Stay order Jurisdiction of Board to issue‑Until confirmation sale by executing Court.
Until confirmation of the sale, the debt subsists and the Debt Conciliation Board has jurisdiction under section 25 of the Punjab Relief of Indebtedness Act to stay execution proceedings for con firmation of the sale.
Megha Rant v, Moti Ram A I R 1944 Lah. 326; Khalil‑ur Rehman v. Gokul Chand 50 I C 772, Ganesh v. Purshutam I L R 33 Bom. 311. Raghunandar Prasad Singh v. Commis sioner of Income‑tax, Fihar and Orissa A I R 1933 P C 101= I L R 12 Pat. 305 ref.
Muhammad Ein v. Nand Lal A I R 1943 Lah. 97 ref.
O. XXI, r. 92---- Confirmation of sale inevitable unless objections upheld under rr. 89 to 91.
Once a sale has validly taken place in execution proceed ings, confirmation of the sale cannot be withheld merely on the ground that the decree has been wiped out or reversed in the meantime. A consideration of the language of section 65, C. P. C., as compared with the provisions of section 316 of the old Code, supports this proposition. In such a case, therefore the Court is under a duty to confirm the sale under Order XXI, rule 92, C. P. C., unless objections have been successfully taken under rules 98 to 91 of that Order.
[Case‑law discussed.]
Yaqub Ali Khan for Appellant.
Ghulam Mohy‑ud‑Din and Nazir‑ud‑Din for Respondents.
The facts giving rise to this appeal are as follows. Messrs Sangjani Stone Ca., Ltd., obtained a money decree for Rs. 2,300 against Abdul Wahid Abdul Majid, contrac tors of Rawalpindi, on the 6th January, 1933. In execution proceedings, a house of the judgment‑debtors was attached by order, dated the 25th February, 1939. One, Abdul Rahim, a brother of the judgment‑debtors, filed objections in the executing Court, to the attachment, under Order 21, rule 58, C. P. C. His objections were dismissed on the 25th April, 1939. A suit brought by him under Order 21, rule 63, C. P. C. was dismissed on the 9111 July, 1940, and the decision was upheld on appeal by the District Judge on the 29th January, 1941. The attached house was sold by auc tion on the 18th November, 1940, and Sohan Singh became the successful bidder at Rs. 1,750. The sale had not yet been con firmed when the judgment‑debtors put in a petition, on the 22nd November, 1940, to the Debt Conciliation Board at Wazirabad, for settlement of their debts under the provisions of the Punjab Relief of indebtedness Act, 1934. It appears that the decree‑holder contested that application. The proceedings in the executing Court were stayed under section 25 of the Punjab Relief of In debtedness Act, at the instance of the Debt Conciliation Board. Ultimately it was intimated to the executing Court that the board had declared the debt due from the judgment‑debtors to Messrs Sangjani Stone Co., Ltd., as discharged for all occasions and purposes, on the 17th March, 1941. The decree‑holder applied to the executing Court, on the 19th July, 1941, praying that the Debt Conciliation Board's order be ignored and the sale confirm ed. This application was, however, dismissed for default. A similar application was moved by the decree‑holder on the 20:h July 1942. It does not appear from the evidence on record, what action was taken on his application. On the 6th January 1945, Sohan Singh, the auction purchaser, applied to the executing Court for refund of the sale money deposited by him in Court. This seems to have been dismissed for default of prosecution. A simi lar petition was presented by him, on the 16th March 1945. In this he recited inter alia that the debt had been cancelled under orders of the Debt Conciliation Board and, therefore, the sale could not be confirmed. Hari Ram, a director of the decree -holder company, appeared in the proceedings consequent on this petition and made a statement on the 24th August 1945 to the effect that as the debt in question had been discharged, the money deposited in Court may be paid over to the judgment‑debtors, if the sale was confirmed. On behalf of the decree‑holders, it was declared that they had no right to get either the property or the sale money. The executing Sub‑Judge heard arguments and by order, dated the 31st August 1945, confirmed the sale and directed that the sale price, after deducting the sale expenses, should be paid over to the judgment‑debtors.
On the 11th May 1946, Sohan Singh transferred his rights in the auctioned property to Muhammad Abdul Khaliq, the plaintiff‑appellant in the present case, for Rs. 2,000 by means of a registered sale‑deed. The auction‑purchaser, Sohan Singh, made a statement before the executing Court on the 24th August 1946, acknowledging the sale and praying that transferee be put in possession of the house sold. A warrant for delivery of possession was accordingly issued on the 1st October, 1946. The delivery of possession was resisted on behalf of Abdul Jabbar Abdul Sattar and Khalil‑ur‑Rahman, who claimed to be in pos session in their right. They pleaded that they had purchased the house from Abdur Rahim. The plaintiff lodged an application under Order 21, rule 97, C. P. C. which was dismissed by order dated the 20th March 1948. In consequence, the plaintiff brought the suit, out of which the present appeal has arisen, on the 31st March 1948, for a declaration that the plaintiff was law‑full owner of the house in suit and was entitled to get possession of it as against the defendants (resisters).
The suit was strenuously resisted on behalf of the defendants on all conceivable grounds. It was urged, inter alia, that the execution proceedings had been consigned to the record room by order of the Sub‑Judge, dated the 10th July 1941, on the ground that the debt had been discharged by the Debt Conciliation Board and consequently the executing Court had no further jurisdiction to confirm the sale. The defendants, moreover, set themselves up as bona fide purchasers for value from Abdur Rahim and invoked section 21 of the Transfer of Property Act in their favour. Some thirteen issues were framed by the trial Sub‑Judge on the plead ings of the parties. Several of these issues were decided in favour of the plaintiff. It was held that Abdur Rahim or his successor‑in‑interest could not ignore the decision of the suit under Order '21, rule 63, C. P. C. against him. The learned Judge, however, thought that difficulties were introduced by the decision of the Debt Conciliation Board and by the fact that the plaintiff's own title was not free from doubt. He was inclined to the view that after the discharge of the debt by the Debt Conciliation Board, the sale could not have been confirmed in favour of Sohan Singh. It followed, therefore, that although the defendants may have no title to the house, yet they could maintain possession over it as against any one who could not prove a better title in himself. It was observed further that the plaintiff could not be allowed to attack the legality of the order passed by the Debt Conciliation Board and that the sale could not have been confirmed later, as was done. In the face of the previous order, dated the 10th July 1941, consigning the execution file to the record room. Accord ing to the learnad Sub‑Judge, Sohan Singh had never pleaded that the sale must be confirmed and that it was confirmed in spite of that fact. In view of these findings, the suit was dis missed but the parties were left to bear their own costs. The plaintiff has come up in appeal to this Court.
This appeal was first heard by a Bench of which Sharif, J., and one of us were members. After full hearing, judgment was reserved. Unfortunately, Sharif, J. was called away on special duty soon after and has not so far re‑assumed his office as Judge of this Court. The appeal, therefore, has been reheard by this Bench.
At the outset, Mr. Ghulam Mohy‑ud‑din Khan, for the res pondents requested that the case may be adjourned for half an hour, as he had to attend the Federal Court in connection with a petition for which he had been engaged. We acceded to his request and allowed the adjournment. Neither he nor his junior, however, appeared for about an hour and we then started hear ing Mr. Yaqub Ali Khan, for the appellant. One of the respond ents Abdul Jabbar, was present in person and he also brought certain facts to our notice. We were inclined at that stage to allow the appeal and indicated our intention to do so when Mr. Ghulam Muhy‑ud‑din arrived. As an act of indulgence, he was permitted to address us and we, therefore, reheard him on the points involved in the case.
The first question that arises for consideration is as to the effect of the order, dated the 10th July 1941, consigning the execution application to the record room, passed by Lala Tara. Chand, Sub‑Judge, and of the subsequent order of confirmation of the sale dated the 31st August 1945 passed by Lala Gobind Ram, Sub‑Judge, at two stages of the execution proceedings. The parties were unable to throw light on the circumstances under which these orders had been passed. We, therefore, summoned the original execution files and have gone through them carefully. It is now clear that Lala Tara Chand passed the order, dated the 10th July 1941, in the absence of the parties and without notice' to them, merely on receiving an intimation from the Debt Con ciliation Board to the effect that the debt bad been discharges., Obviously such an order could not dispose of the execution proceedings finally, to the prejudice of the parties. The execution, proceedings appear to have been revived at the instance of, firs the decree‑holder and then of the auction‑purchaser and that was a perfectly legitimate procedure. The previous order consigning the execution proceedings to the record room must be held to be of no effect in these circumstances.
It must also be remembered that the respondents stand in the shoes of Abdur Rahim, a stranger to the litigation, who had failed in his independent claim to the property and consequently the respondents must be described as pure trespassers qua the property in suit. They have no locus stands to challenge the title of the appellant who is armed with a sale certificate, duly issued by the executing Court, relating to this property on the ground that during the proceedings culminating in the issue of that certificate some irregularities were committed or a wrong order was passed. Such an objection could possibly have been taken by any of the parties to those proceedings but the res pondents could not be permitted to call in question the validity of those proceedings as throwing doubt on the prima facie title evidenced in favour of the appellant by the sale certificate unless he showed some superior title in himself. Mr. Ghulam Mohy‑ud‑din attempted to argue that the order passed by Lala Gobind Ram on the 31st of August 1945 was one without jurisdiction. We are unable to accept this contention as correct. Obviously, the order was with jurisdiction and the argument raised can only be understood as indicating that that was a wrong order. The correctness of that order cannot be canvassed by strangers to those proceedings who are merely trespassers in the property. In fact, what they are pleading is that the appellant is estopped by the previous order of Lala Tara Chand, Sub‑Judge dated the 10th of July 1941. It is not shown how the respondents have changed their position to their detriment because of that order and the plea of estoppel, therefore, cannot be allowed to be raised.
Mr. Yaqub Ali Khan on behalf of the appellant tried to argue that the order of the Debt Conciliation Board itself was ultra vires and of no legal effect and consequently it could be ignored by the executing Court. On the facts of the present case, however, this argument appears to us to be of doubtful validity. It seems that both the decree‑holder as well as the auction purchasers, in their applications or statements, made before the executing Court, eventually admitted that the debt had been wiped off as a result of the proceedings before the Debt Conciliation Board. The debt could have been declared discharged under the provisions of the Punjab Relief of Indebtedness Act on various grounds, which have no relation to the nature of the debt. For instance, the debt would be deemed to be duly discharged for all purposes and for all occasions against the creditor, under section 13 of Punjab Act VII of 1934, if the creditor or his recognised agent failed to submit a statement of the debts owed to such creditor by the debtor, or if he failed to appear in person or by recognised agent or legal practitioner at any of the hearings fixed by the Board or if he failed to produce full particulars and documents as required by sub section (1) of section 14 of the Act. The proceedings of the Debt Conciliation Board are not before us, and we are not in a position to say for what default it was declared that the debt had been discharged. The position seems to have been accepted by both the decree‑holder and the auction‑purchaser that the debt had been wiped off. A mixed question of law and fact appears to be involved in that admission, and it does not appear to be open now to the auction‑purchaser's successors‑in‑interest, to argue that the penalty of discharge of the debt had not been legally incurred. The proper stage for that argument would have been the execution proceedings, and during those pro ceedings, the discharge of the debt was accepted as valid, by all the parties concerned. The plaintiff is apparently bound by the admission of his predecessor‑in‑interest in these circum stances. Beyond proving copies of the plaint and the written statement of the defendants in the suit brought by the decree- holders, no other evidence was led to establish the nature of the debt in this case. It is doubtful how far these two documents should be regarded as sustaining the argument that the debt in question was a mere "trade debt" not within the jurisdiction of the debt Conciliation Board to settle. That argument does not appear to have been pressed before the trial Court and in the circumstances of the case, cannot be permitted to be advanced at this stage.
The contention was raised on behalf of the appellant that after the sale had once been held, although it had not yet been confirmed, the debt must be regarded as "wiped off" and con sequently proceedings taken before a Debt Conciliation Board after that date of sale, could have no relation to an existing debt and would be of no legal effect. Reliance was placed in this connection on a single Bengal judgment of this Court "Bench" for Bengal reported as Muhammad Din v. Nand Lal (A I R 1943 Lah. 97). In that case Tek Chand, J. held that after the sale, but before confirmation, execution proceedings are no doubt in existence but they are not pending "in respect of any debt". In the words of the learned Judge, "the debt' has been wiped off by the auction sale, it has disappeared, at any rate temporarily, from the date of the sale and the proceedings are for deciding objections to the sale under Order 21, rule 90, C. P. C. and not proceedings "in respect of the debt". Hence, according to the learned Judge, a Court has not jurisdiction to stay the confirmation of a sale of mortgaged property, in execution of a mortgage decree, on receiving a notice under section 25 of the Punjab Relief of Indebtedness Act, from a Debt Conciliation Board. This authority has been expressly overruled by a Division Bench of this Court in Megha Ram v. Moti Ram (A I R. 19.14 Lah. 325). It was laid down therein that until confirmation of the sale, the debt sub sists and the Debt Conciliation Board has jurisdiction under section 26 of the Punjab Relief of Indebtedness Act to stay exe cution proceedings for confirmation of the sale. The same inference follows from a decision of the Allahabad High Court, in Khalil‑ul‑Rahman v. Gokal Chand (50 I C 772). A Division Bench of that Court held in that case that where property is sold in execution of a decree, which awards interest until realisation, the decree‑holder is entitled to interest for the period interven ing between the date of the sale and the date of confirmation of the sale. Obviously this could only be the position if the debt subsisted during the period in question. The view taken by Tek Chand, J. was apparently based on certain authorities of the Calcutta High Court. Those authorities need not be discussed as most of them were noticed by Tek Chand, J. in his judgment. The opinion was expressed in them that when a sale in execution of a decree has taken place, the debt is wiped off to the extent of the purchase price although the sale may not yet have been confirmed. No distinction was made in those rulings between cases where the auction purchaser was the decree‑holder himself or where he happened to be a stranger. With all respect, this view appears to us to be unsound. As was pointed out by Sir Abdur Rahman, J. in Megha Ram v. Mod Ram (A I R 1944 Lah. 325), the debt could not be held to have been realised until the sale had been confirmed, and there seems to be no provision of any law that would entitle one to hold a debt to have been wiped off temporarily. At best it could only be argued that till confirmation of an auction‑sale, the right to take further proceedings for realisation of the debt, are sus pended but the debt would undoubtedly continue to exist. The decree‑holder would not be entitled to withdraw the money deposited by the auction‑purchaser in Court till such confirmation. This is supported by a decision of the Bombay High Court in Ganesh v. Purshottam (I L R 33 Bom. 311). On the date of the sale the purchaser does not obtain any indefeasible right, as was pointed out by their Lordships of the Privy Council in Raghunandan Prasad Singh v. Commissioner of Income‑tax Bihar and Orissa (A I R 1933 P C 101=I L R 12 Pat. 305). We have no hesitation, therefore, in repelling the contention raised in this respect on behalf of the appellant.
On behalf of the appellant the argument was then advan ced that the wiping out of a decree subsequent to the date of sale but before confirmation would not be any impediment to the confirmation of a sale, under the present C. P. C. It is con tended that the executing Court is bound to confirm a sale under Order 21, rule 92, C. P. C. unless the relevant party has successfully invoked any of the rules 89, 90 and 91 of that order. In support of this position a number of authorities have been cited by Mr. Yaqub Ali Khan which we proceed to examine in Nannelal v. Umrao Singh (AIR 1931 P C 33), it was held that an adjustment between the decree‑holder and the judgment‑debtor, come to at any time before confirmation of an execution sale, cannot nullify the decree, by taking away the very foundation of the Court's power to execute the decree namely, the existence of a decree capable of execution. An adjustment out of Court between the decree‑holder and the judgment‑debtor, it was pointed out, clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment‑debtor and the decree‑holder and when no other interests have come into being. On the other hand, when once a sale has been effected, a third party's interest intervenes which cannot be disregarded.
The proposition that an executing Court has no option but to confirm the sale if no application is made within the time allowed, under rules 89 to 91 of Order 21, C. P. C. was affirmed in Nerode Chandra Malik v. Official Receiver of Bengal (A I R 1938 Cal. 798 (D B)). Reliance was placed in that case on decision of their Lordships of the Privy Council in Brij Mohun v. Rat Umanath (I L R 20 Cal. 8) and Nanhelal v. Umrao Singh (A I R 1931 P C 33). A Division Bench of the Madras High Court in Ramaswami Iyer v. Komalavalli Ammal (A I R 1941 Mad. 277) expressed the view that after the expiry of the period for an application to set aside an auction sale, the auction‑purchaser can effectively sell the property purchased, even in the absence of a confirmation of the auction sale by the Court and the judgment‑debtor has no saleable interest left in such property. A learned Single Judge of that Court in Sorimuthu Pillai v. Muthukrishna Pillai (A I R 1933 Mad. 598) held that if valid proceeding under rules 89 to 91 of Order 21, C. P. C. are not taken, the Court is bound to confirm the sale and could not refuse to do so on the ground that there was no subsisting decree at the time of the confirmation the sale. It was pointed out that the language of rule 92 of that order is imperative. In that case the property of the judgment‑deb tors had been brought to sale at the instance of the decree holders while an appeal by the judgment‑debtors was pending and one lot of the property was purchased by a stranger. The appellate Court allowed the appeal and dismissed the suit. The judgment‑debtors thereupon petitioned the executing Court and prayed that the auction sale should not be confirmed or that it should be set aside, for which purpose they deposited only 5 percent of the purchase money. It was pointed out in that case that under section 65 of the Code of Civil Proce dure, when the sale becomes absolute, the property is deemed to have vested in the purchaser from the time when the pro perty is sold and not from the time when the sale become absolute. The corresponding provisions in the Code of 1882 were contained in section 316. The first part of that section is now represented by Order 21, rule 91, C. P. C. with slight alterations while its second part is represented by sec tion 65 with important variations. Under the old section, the property vested in the purchaser from the time when the sale became absolute, and it vested in him from the date of the certificate of the sale and not before. There was also a proviso to that section to the effect that the decree under which the sale took place must have been subsisting at the date of the confirmation of the sale. This proviso was eliminated altogether when section 65 of the present Code was enacted. It therefore, follows that the decree need not be subsisting at the time of the confirmation of the sale under the present Code. The same view was taken by other Single Benches of that Court in Ambujammal v. P. Thangovelue Chettar (199 I C 885) and Naravanaswami v. Rudrappa (A I R 1944 Mad. 314).
A distinction was drawn between the case of a stranger auction‑purchaser and that of a decree‑holder auction‑purcha ser by a Full Bench of the Nagpur Judicial Commissioner's Court in Shankar Jawaharlal (A I R 1938 Nag. 525). It was held that a private satisfaction of a decree certified in Court after the sale of immovable property has been held in execution and before the confirmation of the sale is ordered, does extinguish the decree and prevent the Court from confirming the sale in favour of the auction. purchaser, if he be the decree‑holder himself; but not if he is a bona fide third party. A Division Bench of that Court in Birdichand v. Ganpatsao (A I R 1938 Nag. 525) expressed the view that a sale in execution of a decree cannot be set aside, even if the decree under which the sale took place is not merely varied but reversed. It was laid down that a sale in execution, already made, would not become invalid, to be prejudice of a third party purchaser, though different considerations might apply where the decree‑holder himself is the purchaser.
A similar view was upheld by a Division Bench of the Allahabad High Court in Fateh Lai v. Sher Singh (A I R 1925 All. 264). Our attention was invited by M. Ghulam Mohy‑ud‑Din Khan on behalf of the respondents, to another Division Bench decision of that Court reported as Kadhev Mal v. Murtaza Ali (A I R 1937 All. 550). In that case it was laid down that the delivery of possession to an auction‑purchaser is part of the execution proceedings, and if before delivery of possession is made under Order 21, rule 95 or rule 96 of the C. P. C., the decree itself is, for some reason or other, nullified the auction‑purchaser cannot take possession. In that case the decree in the execution of which the applicant was declared to be the auction‑purchaser, was one for sale of mortgaged property consisting of lands which could only be told by the Collector under section 68, C. P. C. The auction ale was held by the Assistant Collector to whom the Col lector had delegated his power of sale Before the sale could be confirmed by the Collector, the judgment‑debtor made an application to the Court which had passed the decree, for action being taken under section 5 of the U. P. Agriculturists' Relief Act, which had been passed in the meantime. He prayed under that Act that interest be reduced and the decretal amount be made payable by instalments. He further prayed that the proceedings in execution, of the decree which had been sent to the Collector, be recalled, and an order was sent accordingly to the Collector staying further proceed ings for confirmation of the sale. The Collector did not comply with the order of the Court, either in disregard or ignorance of that order and confirmed the sale on the 18th February 1936. In due course, the Civil Court converted the previous decree into an instalment decree and when the Collector retransmit ted the case to the Civil Court, the auction‑purchaser made an application under Order 21, rule 95 or rule 96, C. P. C., for delivery of possession. The Court rejected this application and the auction‑purchaser went up in revision to the High Court. It was held in the circumstances of that case that the Collector ceased to have jurisdiction to sell or to confirm the sale, if one had already taken place, after the Court passing the decree had recalled it under rule 3 of the U. P. Govern ment Notification, in respect of a sale under section 68, C. P. C. It was observed that anything done by the Collector during the time that the order of recall subsisted, would be without jurisdiction. The case, therefore, appears to be distinguishable on facts from the present case and the point under consider ation here was not touched in that authority. The previous rulings which have been cited above were also not noticed by the learned Judges.
Another case which went up in appeal to the Privy Council from the Allahabad High Court is reported as Zain‑ul‑Abdin Khan v. Muhammad Asghar Ali Khan (I L R 10 All. 166). In that case a suit was brought by a judgment‑debtor to set side sales of his property in execution of the decree against him in force at the time of the sales, but afterwards so modified, as the result of an appeal to his Majesty in Council, that, as it finally stood, it would have been satisfied without the sales in question, having taken place. He sued both those who were purchasers at some of the sales, being also holders of the decree to satisfy which the sales took place and those who were bona fide purchasers at other sales under the same decree but who were no parties to it. It was held that, as against the latter purchasers, whose position was different from that of the decree‑holding purchasers, the suit must be dismissed. How ever, it is not clear from the facts of that case whether the decree was modified after the sales had been confirmed or earlier.
We come now to the authorities of this Court. In Gulub Singh v. Kishan Singh (A I R 1934 Lah. 508), the view found favour with a Division Bench of this Court that when once a sale had been effected, a third party's interests intervene and the Court can not refuse to confirm the sale on the ground that the decree- holder and the judgment‑debtor say that the decree has been satisfied out of Court. The case would be different, where the auction‑purchaser is himself the decree‑holder. A learned Single Judge in Shankar Das v. Mst. Manglan Devi (A I R 1934 Lah. 146), held that in the absence of an allegation and proof of material irregularity in publishing and conducting the sale, the execut ing Court has no power to refuse to confirm it. In Abdul Rahim v. Abdul Haq (A I R 1936 Lah. 191), the view prevailed that the sale in execution of a decree cannot be set aside merely on the ground that after the date of the sale, in fact more than thirty days after the date of the sale but before its confirma tion, the judgment‑debtor was declared to be a member of an agricultural tribe, whose land could not be sold. Reference was inter alia, made by the learned Judge deciding that case, to Nanhelal v. Umrao Singh (A I R 1931 P. C. 33). Finally, a Full Bench of this Court in Sham Singh v. Vir Bhan (A I R 1942 Lah. 102), upheld the view that the auction‑purchaser has substantial rights in the property during the Interval between the auction sale and the confirma tion thereof and these rights cannot be taken away by supervening legislation, unless the Legislature has clearly expres sed itself that it shall be so.
The preponderance of authority, therefore, seems to be in favour of the view that once a sale has validly taken place in execution proceedings, confirmation of the sale cannot be withheld merely on the ground that the decree has been wiped out or reversed in the meantime. A consideration of the language of section 65, C. P. C., as compared with the provisions of section 316 of the old Code, supports this proposition. In such a case, therefore, the Court is under a duty to confirm the sale under Order 21, rule 92, C. P. C., unless objections have been successfully taken under rules 89 to 91 of that Order.
But it was sought to be argued that in the present case the order passed by Lala Gobind Ram, Sub‑Judge, was absolutely without jurisdiction as the sale had been confirmed without the auction‑purchaser or the decree‑holder having asked for it. On a reference to the original execution file, however, it becomes crystal clear that the sale was confirmed on the insistence of the auction‑purchaser himself. It is true that in his written petition, the auction‑purchaser had merely asked for the return of the money deposited in Court on the plea that the debt bad been wiped out by order of the Debt Conciliation Board. The decree‑holder also accepted the latter position. But the point seems to have been taken in arguments before the learned Sub‑Judge, that despite that fact, the sale could be confirmed, and reliance was placed on two authorities, namely, Nanhelal v. Umrao Singh (supra) and Ambujammal v. P. Thangacelu Chettiar (supra). There is an endorsement on the file in the hand of the learned Sub‑Judge to the effect that arguments had been heard and these two rulings had been cited before him. Obviously as the decree. holder was taking no interest in the matter, these‑rulings could only have been cited by learned counsel for the auction- purchaser. On their basis, the learned Sub‑Judge confirmed the sale. The conclusion reached by the learned Sub‑Judge cannot be successfully assailed, in view of the authorities discussed above.
The result is that the sale must be held to have been properly confirmed and the transferee from the auction- purchaser is entitled to possession against a transferee of Abdur Rahim whose claim to the property had been con clusively negatived in the previous litigation. The property of the judgment‑debtors has been now converted into cash which is still lying in the executing Court. Lala Gobind Ram very properly directed that this money be paid over to the judgment‑debtors. They can still apply for its refund. The appeal must be allowed. We set aside the judgment and decree of the trial Court, allow this appeal and decree the plaintiff's suit for possession with costs throughout.
A. H. Appeal allowed.
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