KANAKKU KOMAN SANKARA KURUP Vs. NARAYANAN KRISHNA PANICKER

JUDGEMENT

(1.) Pending the confirmation of an execution sale, the appellant purchased from the judgment debtor the property the court had sold and in due time made an application under O.21 R.89, Civil Procedure Code, to set aside the sale. The deposit of the amounts requried by the rule was also made. The court sale was on 9.8.1951, the appellants purchase on 22.8.1951 and the application and the deposit on 30.8.1951. As R.89 of O.21 stood then the appellant who had acquired title to the property after the court sale had no locus standi to make an application under it. The rule then enjoined that the applicant thereunder should own the property sold by the court or hold an interest therein by virtue of a title acquired before such sale. Notwithstanding this inhibition against persons who acquire title after the court sale, the execution court allowed the appellants application and vacated the court sale. On appeal therefrom by the decree holder auction purchaser, the learned District Judge of Alleppey set aside the order on the ground that under R.89 an application by the present appellant was incompetent. The second appeal is directed against this order of the learned District Judge.

(2.) The suit giving rise to the decree, pursuant to which the court sale took place was instituted before the Shertallai District Munsiffs court in 1114 when the Travancore Civil Procedure Act, VIII of 1100, was in force. O.21 R.86 of the said Code which corresponded to O.21 R.89 of the Civil Procedure Code Act V of 1908, allowed also persons who acquired title to the property sold by the court after such a sale to apply under the said rule. However, on 1.4.1951 the Code of Civil Procedure (Amendment) Act, 1951 came into force and repealed the corresponding law in the Travancore area of the State, namely, the Travancore Act VIII of 1100, replacing it by Central Act V of 1908. We have since amended R.89 in terms of R.86 of the Travancore Code. This was on 14.5.1952, but this amendment has no bearing on the question for determination, even though the learned District Judges order happened to be made after the amendment.

(3.) The learned District Munsiff noticed the difference between R.89 of O.21, Act V of 1908 and the corresponding provision of the Travancore Code, but allowed the petition to annul the sale in purported exercise of his inherent powers. This, the learned District Judge took to be wrong as there was no scope for the exercise of inherent powers on a matter in relation to which there was express provision in the Code. Mr. P. Govindan Nair, the learned Counsel for the appellant, did not seek to have the learned District Munsiffs Order restored on the ground on which it was rested. According to him, as the suit giving rise to the decree in execution of which the sale took place was instituted and even the execution application pursuant to which the sale was held filed (28.2.1951) when the Travancore Civil Procedure Code was in force, the law applicable to the case was the Travancore Code and his client was therefore under O.21 R.86 thereof competent to make the present application. It was argued that otherwise it would be permitting a supervening legislation, which does not by express enactment or necessary intendment take away the vested right of the litigant, to deprive him of that right. The contention was that under O.21 R.86 of the Travancore Civil Procedure Code, to save himself from monetary loss that might be occasioned to him if the property was sold at the auction sale at an inadequate price, a judgment debtor had the right to sell his property even after the court had sold it. It was open to him to sell the whole property and keep for himself the difference between the price fetched at the private sale and that at the auction sale plus the five per cent solatium to the purchaser or sell a portion of the property to a private purchser and keep the rest for himself. This right, counsel argued was a substantive right vested in the judgment debtor when the suit was brought and even when effective execution started. It was contended that as the altered rule touched a right in existence on the date of the introduction of the alteration, it cannot have retrospective operation so as to deprive the judgment debtor of his vested right and that the alteration of the rule was not a mere alteration of the procedure. We accept the argument and hold that the right referred to inhered in the judgment debtor from the commencement of the proceeding which ultimately led to the execution sale.