9911796707
TMI Blog1966 (11) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... y 20, 1962 he filed an objection petition against the sale of the house on the ground that the house which was valued at Rs. 25,000/- had been auctioned for Rs. 5,000/- only and that the sale had not been conducted in a proper manner inasmuch as there was no- due publication of it and the sale too was not held at the proper hour. By an order dated April 19, 1962, the executing court stayed the execution of the decree till the disposal of the application for setting aside the ex parte decree. On October 26, 1962 the ex parte decree against the defendant-judgment-debtor was set aside. On November 3, 1962 the auction purchaser made an application for revival of the execution proceedings and for confirmation of the :sale under O.XXI, r. 92 of the Code of Civil Procedure. On November 7, 1962 the judgment-debtor filed an objection thereto contending that the application for revival of execution proceedings was not maintainable after setting aside the ex parte decree and that the auction purchaser was in conspiracy and collusion with the decree-holder and as such not entitled to have the sale confirmed. It is to be noted here that the case of collusion was not :substantiated. On August 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Such certificate is to bear date of the day on which the sale becomes absolute. Section 65 of the Code of Civil Procedure lays down that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when it is sold and not from the time when the sale becomes absolute. The result is that the purchaser's title relates back to the date of sale and not the confirmation of sale. There is no provision in the Code of Civil Procedure of 1908 either under O.XXI or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once the sale is con- firmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. The question is, whether the same result ought to follow when the reversal of the decree takes place before the confirmation of sale. There does not seem to be any valid reason for making a dis- tinction between the two cases. It is certainly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of 1859. Sec. 316 was amended in 1879. The proviso to this section as amended was to the effect that the purchaser was to have title to the property sold from the date of the confirmation of the sale only if the decree under which the sale took place was subsisting at that date. Sec. 316 with the proviso was re-enacted in the Code of 1882. In the Code of 1908 s. 316 was split up into, s. 65 and O.XXI r. 94 but the proviso was not included either in s. 65 or in r. 94 of O.XXI. Elaborate arguments were put forward in the Madras case just now cited as to the cause and effect of the deletion of the proviso to S. 316 of the Code of 1908. Madhavan Nair, J. referred to the report of the Select Committee which considered the Bill to amend the Civil Procedure Code of 1877 as -showing that the alteration was effected in order to preclude the doubt which had arisen in Bombay where a certificate had been granted to an auction purchaser in ignorance of the fact that the decree under which the sale took place had been previously reversed in appeal. Probably the decision which the Select Committee had in mind was the case of Basappa v. Dundayya (I.L,R. 2 Bombay 540) before the said decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83, the petitioner filed an appeal in the High Court against that order and the High Court on February 22, 1884 reversed the order of the District Judge. In the meantime the lands attached were put up for sale and were purchased on February 22, 1884-the same day as the High Court allowed the order disallowing the petitioner's claim. The District Judge was not aware of the order of the High Court nor did it appear which order was made first in point of time on February 22. The highest bidder was a stranger to the suit who had paid the purchase money and was a bona fide purchaser. On August 16, 1884, the petitioner filed a petition in the District Court praying that the attached lands might be given to and put in his possession. This was dismissed by the District Judge. The petitioner applied to the High Court in revision under s. 622 of the Code of Civil Procedure on the ground that the District Judge had refused to exercise the authority vested in him to restore the petitioner to possession under the order of the High Court and on the ground that the confirma- tion was made without jurisdiction. He also presented an appeal against the order as a question between the decree- holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he second defendant. The plaintiff sued to set aside the sale and to recover possession of the land. It was found that although the decree was obtained by fraud, the property was sold at a considerable undervalue and the purchaser had no knowledge of the fraud. It was held by the Bombay High Court that a purchaser for valuable consideration without notice of the fraud was not liable to have the sale in his favour set aside. It will thus be seen that even before 1908 the different High Courts were always disposed to uphold the auction purchase in favour of a stranger to the suit when he was no party to a fraud against the judgment-debtor and where the case did not clearly fall within the proviso to s. 316 of the Code of 1882. Let us now examine a few decisions given under the Code of 1908. In Shankar v. Jawaharlal (A.I.R. 1928 Nagpur 265) a Full Bench of the Judicial Commissioner's Court at Nagpur went elaborately into the question and came to the conclusion that: " a private satisfaction of a decree certified in court after the sale of immovable property has been held and before the confirmation of the sale is ordered, does extinguish the decree and prevent the Court from confirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of property in favour of a stranger auction purchaser on the ground that the decree leading to the sale had been upset in appeal before the confirmation of the sale. In Birdichand v. Ganpatsao (A.I.R. 1938 Nagpur 525) it was held that it did not matter that the sale had not been confirmed at the date of the reversal of the decree unless there was a successful application under rr. 89, 90 or 91 of O.XXI. In Amhujammal v. Thangavelu Chettiar (A.I.R. 1941 Madras 399) it was observed: "There is no provision in the Code for the cancellation of a sale merely because of the cancellation of the decree and though it is in accordance with justice that a person who has succeeded in appeal should get from the opposite party such restitution as is possible, there is no principle of justice whereby an innocent third party who has pur- chased in a valid auction held by the Court should be deprived of his property, merely because the decree under which the sale was held has been cancelled in appeal. On general principles the judgment-debtor can look to the decree-holder to give restitution when the decree has been set aside in appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment-debtor was declared to be a member of an agricultural tribe entitled to protection under the provisions of the Punjab Alienation of Land Act. All the judgments so far noticed are against the contention of the respondent. Our attention was however drawn to a judgment of the Calcutta High Court in Baburam Lal v. Debdas Lala (A.I.R. 1959 Calcutta 73). There is an observation to the effect that where the lower Court's decree has been reversed in appeal, the execution proceedings cannot go on. In that case, there was no sale in execution and the question before the court was, whether the plaintiff should be allowed to proceed with the execution of a decree for Rs. 1,493-1-6 when as the result of the final decree it was found that the defendant was entitled to Rs. 1,589-0-8 as owelty money from the decree- holder. The decision in Ariatullah v. Seshi Bhusan (A.I.R. 1920 Calcutta 99) cited by the respondent is really of no help. There a sale was held in execution of a decree for an amount in respect of which there was no decree existing at the time. It was observed that the fact that subsequently to the sale the decree,- holder obtained a decree entitling him to the amount for ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
