NARAYANAN Vs. MARIAMMA

JUDGEMENT

(1.) The fourth counter petitioner in I. A. No. 684 of 1979 in Rent Control Revision No. 1 of 1979 on the file of the District Court, Kottayam is the revision petitioner.

(2.) Respondents 2 and 3 had borrowed money from a bank and the bank had obtained a decree in O. S. 51 of 1960 on the file of the Sub Court, Kottayam charged on properties hypothecated to the bank. In execution of that decree the right, title and interests of respondents 2 and 3 were sold in court auction in the above mentioned case on 20-8-1968 and purchased by the decree holder. Though the judgment debtors (respondents 2 and 3) took steps to set aside the sale they did not succeed and the sale was confirmed on 28-5-1975. During the pendency of an application to set aside the sale alleging that the third respondent is their tenant of the building situate in the property and has committed default in the payment of rent respondents 2 and 3 filed R. C. O. P. 121 of 1970 to evict him from the building. That ended in a compromise and an order for eviction in terms of the compromise was passed by the Rent Control Court on 31-3-1971. When respondents 2 and 3 applied for eviction the third respondent objected to the same alleging that the eviction order passed on a compromise petition is invalid and it cannot be executed. This plea was not accepted by the Rent Control Court, the District Court and the High Court. By order dated 12-2-1975 in C. R. P. 830 of 1974 this Court found that the compromise petition does not violate the provisions of S.11 of the Rent Control Act and as such the order for eviction based on the compromise petition is valid and executable. It is to be remembered that it is after this order that the court sale referred to earlier was confirmed on 28-5-1975. After the dismissal by this Court of the revision petition filed by the third respondent, respondents 2 and 3 proceeded with the execution and the court ordered the property to be delivered over to them. When the Amin went to the spot the present revision petitioner obstructed and so the Amin returned the warrant without effecting delivery Thereafter to remove the obstruction respondents 2 and 3 filed E. A. 418 of 1975. The contentions that were taken up by the revision petitioner to resist delivery were two fold. He contended that the building is in his possession independently of the third respondent and that the eviction order does not bind him. His another contention was that the right, title and interest of respondents 2 and 3 having been sold in court auction and lost to them in the above mentioned case they have no right to recover possession of the building. Accepting these contentions the executing court dismissed the application of respondents 2 and 3 and so they filed a revision petition before the District Court. Pending that petition the auction purchaser's rights were purchased by the first respondent and she filed an application to implead herself as additional petitioner in the revision petition. This has been allowed by the lower court. The question for consideration is whether she can come in to continue the proceedings taken by respondents 2 and 3.

(3.) It is true the rights of respondents 2 and 3 were sold in court auction on 20-8-1968 and that sale was pending confirmation till 28-5-1975. Until this confirmation respondents 2 and 3 continued to be the owners entitled to administer the property and deal with the tenants, if any, in possession. So the application for eviction filed by them as R C. O. P. 121 of 1970 and the eviction order passed thereon on 31-3-1971 were perfectly legal and valid. While they were executing that order the sale referred to earlier was confirmed and the title of the purchaser related back to the date of sale (See S.65 CPC.) This will not in any way invalidate or nullify the order for eviction obtained by respondents 2 and 3 against the third respondent. Until confirmation of the sale the auction purchaser obtained only an inchoate right over the property. Possession of the judgment debtor whose property has been sold in court auction, but the sale remains not confirmed, is similar to that of a trustee The principle of S.94 of the Trusts Act, 1882 will apply. The beneficial interest is either with the judgment debtors themselves or with the purchaser depending on the non confirmation or confirmation of the sale. The steps taken by the judgment debtor will enure to the benefit of the person ultimately found entitled to the property which fact, no doubt depends on the confirmation or non confirmation of the sale. Even though the title of the auction purchaser relates back to the date of sale from that date to the date of confirmation of the sale every step taken by the judgment debtor will have to be considered as a step taken by the rightful owner and when the auction purchaser steps into the shoes of the judgment debtor on confirmation of the sale, the steps taken by the judgment debtors will in law amount to steps taken by the auction purchaser. This is a natural consequence of the vesting of the property with the auction purchaser from an anterior date. As an incident of the vesting of the property in the auction purchaser from an anterior date the right to continue the proceedings till then with the judgment debtors also passes to the