RAPHAEL Vs. ALICE JOSE

JUDGEMENT

(1.) THE C. M. A. was allowed by the order dated 17. 7. 2000. THE main contention raised in the R. P. was that the auction has been confirmed in the name of the petitioner and hence this Court cannot pass any order regarding the application for setting aside the sale. In the judgment, this Court observed as follows: " THE contention of the counsel for the auction purchaser is that since the sale has been confirmed, the petition for setting aside the sale cannot be considered is not correct. THE sale was confirmed following the dismissal of the petition for setting aside the sale. " In the review petition, the petitioner has taken the ground in Para. 2, 3, 4 and 5 that since the sale has been confirmed, no order can be passed in the petition to set aside the sale. Learned counsel relied on two decisions, Pethaperumal v. Chidambaram, AIR 1954 Mad. 760 and Janak Raj v. Gurdial Singh AIR 1967 SC 608. We have gone through the judgments. So far as the Madras High Court's judgment is concerned, that does not deal with the question at issue here. It only says that once the sale has been confirmed, the auction purchaser becomes the title holder. In the Supreme Court judgment it has been observed that merely because the decree has been set aside the sale confirmed in favour of the auction purchaser will not be effected. So far as the present case is concerned, the question is regarding the sale which was confirmed after dismissing the petition under O. 21 R. 90 CPC. O. 21 R. 90 will subject to an appeal. THE argument of the counsel for the petitioner is that once the executing court passes an order confirming the sale, that is an end of it. That order cannot be challenged and that the sale cannot be set aside. This argument, according to us, is not correct. In Varadarajan v. Muthu Venkatapathy Reddy and others A. I. R. 1953 Madras 587, a Division Bench consisting of Satyanarayana Rao & Krishanswami Nayudu, JJ. held as follows: " THE restoration of a petition under O. 21, R. 90 dismissed for default would make the confirmation of sale already made ineffective. Such an order of confirmation may be treated as automatically vacated or even may be considered to be null and void. " THEir Lordships referred to a decision in the Privy Council Shama Purshad v. Hurro Purshad 10 Moo Ind App. 203 (PC) (D) wherein it was held that certain orders and decrees which are subordinate and dependent upon earlier orders and decrees could remain in force so long as the order or decree on which they were dependent are not reversed or superseded. In Ganga Ram v. Hiralal Allahabad Law Journal 1970 (Vol. 68) 320, it was held as follows: " Under Clause. (1) of R. 92, C. P. C. where no application is made under R. 89, 90 or 91, or where such application is made and disallowed, the court can make an order confirming the sale. If the order disallowing the objection is set aside in appeal or in another suit, the confirmation falls with it. THEre is no distinction on principle in the case of an order disallowing objections being set aside by courts other than the court which passed it and in a case where the order is set aside by that very court. If the court has jurisdiction to adjudicate upon the setting aside of an order disallowing the objection, the consequence that the order of confirmation which might have been passed in the meanwhile will be null and void will follow. THE setting aside of an order disallowing the objection as a result of the success of an application for restoration would make the order of confirmation of sale ineffective. THE execution court had jurisdiction to entertain the application for restoration and, on being satisfied that it disclosed sufficient cause, to set aside the order disallowing the objections. In C. Kamala v. THE Commissioner of Income Tax 1978 TLR 1323 it was held as follows: " A close reading of the provisions of O. 21, R. 90 and 92 and S. 64 C. P. C. would show that until the sale becomes absolute on its confirmation subject to any order to be made in an appeal, the auction purchaser cannot become the owner of the property. If an appeal is filed, the appellate court can set aside the order of the executing court and also the sale. If the sale is set aside on appeal, the fact that it was confirmed by the executing court earlier would not be material. THEre is no difference between the Appellate Court setting aside a sale after hearing the arguments of the parties or as a consequence of a compromise between the parties because in both the cases the auction purchaser would not have acquired any interest in the property at any time. It follows that there cannot be any transfer of interest in a capital asset by the auction purchaser when the sale itself is set aside in appeal. " In the above view of the fact, we are of the view that the argument of the counsel for the petitioner has no basis. Thus no grounds have been made for reviewing the judgment. THE R. P. is dismissed. .