HARBANS LAL Vs. RAM JAWAI DEVI

JUDGEMENT

(1.) The question for the decision in this appeal as a preliminary question, is whether the order of the learned single Judge of this court (Sultan Singh, J.) rejecting the appellant's application made under the proviso to Sub Rule ( of Rule 92 of Order XXI Civil Procedure Code is appealable under Order XLIII (l)(j) of the Code. Rule (1) and said Proviso run as follows:

(2.) The present appellant purchased the suit property in an auction for Rs. 54,000.00 in December 1964, in the execution of a decree in a suit filed by one Jatinder Prakash against Bhag Mal Jain (who is now succeeded by his legal representatives, respondents 9 to 14 in the present appeal)-the debtor in the said suit had mortgaged the suit properly to one Bal Kishan Dass (Whose legal representatives are respondents I to 8 in the present appeal). In January 1966, a sale certificate was issued in the name of the appellant. The appellant did not fake any steps to redeem the suit property from Bal Kishan Dass, In the meanwhile, in the mortgage suit between Bhag Mal Jain and Bal Kishan Dass, a preliminary decree was passed in favour of Bal Kishan Dass which was was converted into a final decree on 12-8-71. After the final decree was passed, the appellant filed civil suit on 15-11-71 for declaration and injunction alleging that the final decree in favour of Bal Kishan Dass was otainea by fraud and collusion between the parties. The said suit is still pending. In pursuance of of the decree passed in favour of Bal Kishan Dass. the suit property was put to auction and M/s- Delhi Packing Private Limited purchased the suit property for Rs. 1.40 lacs. On 4-9-78 the appellant and one Vidya Sagar filed objections to the confirmation of sale in favour of M/s. Delhi Packing Private Limited under Order XXI Rule 90 of the Civil Procedure Code The said application was rejected and the sale was confirmed by Kapur, J. of this High Court. F.A.O. (OS) No. 39 of 1978 was filed against the said order of Kapur, J. by the appellant which is admitted and pending disposal in this court. However, no stay was granted in favour of the appellant. Contrary to his earlier case, the appellant filed another civil suit on 22. 11. 78 for the redemption of mortgage of the suit property. M/S. Delhi Packing Private Limited the auction purchaser is not a party to either of the suits filed by the appellant. But before filing the suit for redemption the appellant filed an objection bearing 1. A. No. 3474/78 under the proviso to Sub Rule (1) of Rule 92 of Order XXI The Auction Purchaser-M/s. Delhi Packing Private Limited also filed an application DA. No. 392"/78) for the confirmation of sale in its favour. On these facts the learned Single Judge held that although the appelland's application (1. A. No. 3474/78) is purported to be made under the proviso to Sub Rule (1) of Rule 92 of Order XXI, the said proviso was not applicable to the facts and circumstances of the present rase. The learned Judge also noted that the earlier application filed by the appellant under Order XXI Rule 90 was rejected by the Single Judge of this court and the appeal taken against the said rejection by the appellant is still pending disposal in this court. Sultan Singh, J. by his order dated 24. 11. 73 thus rejected the application and granted the application of M/S. Delhi Packing Private Limited for confirmation of sale. Against this order of Sultan Singh, J. the present appeal is filed.

(3.) The learned counsel for the appellant contended that the true effect and necessary consequence of the impugned order is "refusing to set aside a sale" within the meaning of order XLTIf (DCj) and hence the appeal was maintainable. He contended, in the alternative, that the appeal was maintainable under Section 10 of the Delhi High Court Act. The learnel counsel for the appellant fairly conceded that there was no direct authority on the proviso in question. He cited at the bar serveral decisions of the Supreme Court and the High Courts to the effect that order of confirmation is a necessary corollary of and order refining to sit aside a sale The learned counsel for the respondent, on the other hand, contended that an order passed on an application under the proviso in question is neither an order setting aside the sale nor an order refusing to set aside the sale within the meaning of Order XLIII (1) (j). The learned counsel further contended that in any case since the appellant's application under Order XXI Rule 90 has already been once rejected by this court, the second application challenging the confirmation of sale is not tenable in law. In support of the second contention the learned counsel for the respondent relied upon 43 Calcutta Weekly Notes, P. 352 and 1964 Kerala Law Times, Pg. 720. We are inclined to uphold the respondent's objections to the maintainablity of the present appeal.