TMI Blog1966 (11) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... her a sale of immovable property in execution of a money decree ought to be confirmed when it is found that the ex parts decree which was put into execution has been set aside subsequently. The facts are simple. One Swaran Singh obtained an ex parte decree on February 27, 1961 against Gurdial Singh for Rs. 519/-. On an application to execute the decree, a warrant for the attachment of a house belonging to the judgment-debtor was issued on May 10, 1961. At the sale 'which took place, the appellant before us became the highest bidder for Rs. 5,100/- on December 16, 1961. On the 2nd of January 1962, the judgment-debtor made an application to have the ex parte decree set aside. On January 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantial injury by reason of such irregularity or fraud. 'Under r. 91 it is open to the purchaser to apply to the court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold. Rule 92 provides that where no application is made under any of the rules just now mentioned or where such application is made and disallowed the court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 94 provides that where the sale of immovable property has become absolute, the court must grant a certificate specifying the property sold and the name of the person who at the time of sale was declared to be the purchaser. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars have not been unanimous in this respect. In Sorimuthu v. Muthukrishna (A.I R. 1933 Madras 598) Madhavan Nair, J. traced the course of these provisions from the Code of 1859 up to the Code of 1908. The relevant sections in the Code of 1859 were ss. 256, 259 and 260. The net effect of these provisions was that no sale of immovable property would become absolute until the sale had been confirmed by the court' and after the sale had become absolute, the court was to grant a certificate to the purchaser stating that he had purchased the right, title and interest of the defendant in the property sold. Sec. 314 and S. 316 of the Act of 1877 correspond in part with s. 256 and s. 259 of the Act 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 argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma (I.L. R. 9 Madras 130) which was decided in the year 1885 the suit having been instituted in 1876, the facts were as follows. The plaintiff obtained a decree against the defendant for Rs. 5,617/12/0. On the death of the defendant, his son was made a party to the suit as a representative of his father and when the son died, the grandson was made a party to the suit as representative of his grandfather. In 1883 the decree-holder attached certain lands and the grandson the petitioner before the High Court, filed an objection to the attachment claiming the property as his own. The objection and the claim were disallowed by the District Judge by order dated August 20, 1883. On December 5, 1883, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 Calcutta 175) which the Code of 1882 both the learned Judges held in favour of the judgment-debtor. Maclean, C.J remarked that when the ex parte decree was discharged, no decree in the suit remainded and that being the position no sale could be confirmed when the decree under which was made had ceased to exist. Both the learned judges referred to s. 316 of the Code which included the proviso. In Chitambar Shrinivasbhat v. Krishnappa (I.L.R. 26 Bombay 543) there was an ex parte decree which was found to have been fraudulently obtained by the first defendant against the plaintiff and in execution thereof certain lands belonging to the plaintiff had been sold by auction and purchased by the 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 wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le has been duly carried out), if no application is made under r. 99: "the Court shall make an order confirming the sale and thereupon the sale shall become absolute"." This aspect was stressed in the judgment of Madhavan Nair, J. who also referred to certain instances where sales had been refused to be confirmed on grounds other than those contained in O.XXI rr. 89 and 90. The learned Judge pointed out that these were instances where the court held that in law there was no sale at all. In Sorimuthu's case (A.I.R. 1933 Mad. 598) Madhavan Nair, J. refused to set aside the execution sale 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 cance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mere fact that the auction purchaser knew that the judgment- debtor had filed an appeal against the decree in which the sale was held would not affect the bonafide nature of his purchase even if the decree was ultimately reversed. In Abdul Rahim v. Abdul Haq (A.I.R. 1936 Lahore 191c) which was a decision of a single Judge of the Lahore High Court, it was held that the sale in execution of a decree could not be set aside merely on the ground that after the date of the sale but before its confirmation, the 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 ..... 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