TMI Blog1958 (9) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... 2086, 20805, 9710 and 10837; (5) dated 20-2-38 for ₹ 15,000 in respect of tauzis Nos. 915, 12597, 12595, 1193, 1216, 317, 20776, 2086, 20806, 9710, 10837, 7462 and 643; and (6) dated 16-3-39 for ₹ 18,600 in respect of tauzis Nos. 915, 12595. 12597, 1193, 1216, 317, 20776, 2086, 20805, 9710, 10837 and 7462. On 21-7-1941, the mortgagees filed a joint mortgage suit in the Court of the 1st Subordinate Judge, Muzaffarpur, for the enforcement of the aforesaid mortgages claiming in all ₹ 2,01,973. In due course a joint decree was passed on 10-2-1944, for ₹ 2,57,283/4/9. It appears that the appellants had obtained a money decree against the mortgagor, Bindabasini Prasad. In execution of that decree in Money Execution Case No. 199 of 1938 they attached and put to sale his 8 annas 13 gandas share in tauzi No, 915 and themselves purchased the same at the auction on 7-4-1941. Subsequently, they obtained sale certificate and delivery of possession of the purchased milkiat interest through Court. In the meantime, Bindabasini Prasad, the mortgagor, created a trust of all his properties in favour of the Kayastha Pathsala, Allahabau, by two registered instruments da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this appeal the mortgaged properties, which consisted of proprietary milkiat interest, vested in the State under the Blhar Land Preforms Act, and, therefore, under Section 4(d) of that Act the entire execution is incompetent and should be quashed. 4. The first contention is based upon misconception of the law of marshalling of security. The doctrine of marshalling assets and securities depends upon the principle that a person, having two funds out of which to satisfy his demands, shall not, by his election, prejudice a person who has only one such fund : Whartoa's Law Lexicon (14th Ed.). This equitable principle has been enacted in Section 56 and Section 81 of the Transfer of Property Act The former prescribes the rule as to marshalling by subsequent purchasers, whereas the latter provides for the marshalling of securities at the instance of a subsequent mortgagee. The rule of law enacted by these two sections is that if the owner of two or more properties mortgages them to one person and then sells or mortgages one or more of the properties to another person, the buyer or the subsequent mortgagee is, in the absence of a contract to the contrary, entitled to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which such properties are to be sold, the executing Court has, in certain exceptional cases where equity demanded it, a discretion to regulate the order in which the mortgaged properties ought to be sold. There are, however, two limitations on the power of the executing Court. Where the Court passing the mortgage decree has definitely laid down the order in which the mortgaged properties are to be sold the executing Court cannot ignore the original decree and proceed to sell the properties in a different order, especially when the decree-holder or the judgment-debtor raises objection to such a procedure. (Sec Mehdatunnissa Begam v. Sewak Ram, AIR 1933 Pat 161. Secondly, the executing Court has no power to exclude any of the properties decreed against. All the properties must be advertised for sale, and when they are actually brought into execution and. become subject to sale, it would be then for the Court to decide on just and equitable principles which property ought to be sold first. The decree-holder is entitled to have all the properties mortgaged to him, put up for sale, but at the time of sale it is entirely in the discretion of the Court executing the decree to direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution proceeding was passed. Pursuant to this order the executing Court stayed confirmation of the sale on 15-9-1952. That order is still in force, and the sale has riot been confirmed as yet. In the meantime, during the pendency of this appeal the mortgaged properties which consist of only proprietary interests in village Binpnr, Tauzi No. 915, vested in the State under the Bihar Land Reforms Act, 1950 (hereinafter referred to as the Act). After the vesting, on the application of the appellants made on 7-3-1956 this Court issued notice to the State Government pursuant to the provisions of Section 4(ee) of the Act. The State Covern-ment, however, has not appeared and applied for being added as a party to this appeal, The contention of Mr. Lal is that in consequence of the vesting of the mortgaged properties in the State, the entire legal position has changed, and by virtue of the provisions of Clauses (d) and (e) of Section 4 of the Act the Civil Court has no jurisdiction to continue the execution proceeding and confirm the sale that has already taken place. Clauses (d) and (e) provide as follows : (d) No suit shall lie in any Civil Court for the recovery of the money due f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. Unlike a sale by a private treaty a Court sale is not absolute and complete immediately it takes place. The property does not vest in the purchaser unless the sale has become absolute as provided in the Code of Civil Procedure.. Section 65 lays, down the effect of the sale becoming absolute. Though the property sold in execution of a decree does not Vest in, the auction purchasers, until it is confirmed, once the sale is confirmed and becomes absolute, the title of the auction purchaser shall relate back to the date of the auction sale. It follows from Section 65 that the sale is incomplete and legally ineffective to pass a good title unless and until the sale is confirmed and becomes absolute. It is only when confirmation of the sale takes place, the provisions of this section as to the retrospective Vesting of title from the date of the sale come into operation. The important question is when the judicial sale becomes absolute? A judicial sale becomes absolute only when the requirements of Rule 92 of Order 21 of the Code are ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 92 is not a mere ministerial or formal order; it is a judicial order, and the expression the Court shall make an order confirming the sale makes it absolutely clear that this rule requires an order of a Court confirming the sale. The absence of any proceeding under Rule 89, 80 or 91 to set aside the sale or disallowance of any application to set aside the sale under any of the aforesaid rules is not equivalent to confirmation of sale, and, therefore, before the sale becomes absolute as provided in rule 92 so as to confer an indefeasible title on the auction purchaser, there must be a further order of the Court confirming the sale. Ordinarily, the Court is bound to confirm the sale when it has not been set aside, as provided in the Code. Nevertheless, there must be an order of the Court confirming the sale, and it is only when such order is made the sale becomes absolute. It is evident, therefore, that there was no automatic confirmation of sale immediately after the expiration of thirty days from the date of the sale, as contended by Mr. Mukharji. In this case, although the sale had taken place, its confirmation had been grayed by the Court; in other words, there was no conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Deputy Magistrate Subordinate Judge stating that as the Commissioner had stayed further proceedings in all Courts he prayed that delivery of possession in favour of the decree holder auction-purchaser He stayed. He apparently also asked that the order of confirming the sale be vacated. The Deputy Magistrate Subordinate Judge declined, to vacate his order confirming the sale or to stay Dakhaldehani as prayed for. Against this order Go-pal moved the High Court. Harries C, J., delivering the decision of the Division Bench, observed as follows : However, one thing is clear and that is that the purchaser at an auction sale does not aequire a good title to the property until the sale is confirmed. When it is confirmed, the auction-purchaser is deemed to be the owner of the property as and from the date of the actual sale. The property is deemed to have vested in him at the date of the sale. The words of Section 69, Civil P. C. make it clear that the property does not actually Vest in the purchaser at the time of the sale; but once the sale is confirmed, it is deemed to have vested in him as and from that date. Without confirmation tbe purchaser acquires no title and it appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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