S. VENKATESH KOTADIA Vs. SHANTHA BAI

JUDGEMENT

(1.) THIS appeal raises an interesting question as to whether an execution sale of immovable property to a stranger purchaser has got to be confirmed under Order XXI, Rule 92, C. P. C., notwithstanding the fact that the decree, in execution of which the sale took place had, before its confirmation, been modified on appeal there from, with the result that on the date of the sale, the decree remained overpaid and nothing was due under the same. In such circumstances, the lower Court declined to confirm the sale on the view that, on the date of the sale, nothing was due to the decree -holders for which they could put up the property for sale. Aggrieved by that order, the stranger purchaser has filed this appeal.

(2.) ON 31 -3 -1954 in suit No. 17 of 1941, the Joint Civil Judge, Nadiad passed a decree tor Rs. 39,878 -7 -9 with costs in favour of Santha Bai and Dave Bhavani Sankar and against three defendants, Deva Jetharama Jebhai (deceased), Dave Ganpatram Jetharam and Dave Jayadevlal Jetharam. By E. P. No. 133 of 1955 on the file of the City Civil Court, Madras, the house and ground No. 8 Ragunayakulu Street, P. T, Madras was sold for Rs. 15,000 in execution, but on an application made by one of the defendants the sale was set aside. Davey Govindararn, the 2nd efendant, paid Rs. 20,000 and part satisfaction of the decree was entered by an order dated 19th March, 1956.

(3.) IT was contended in support of the appeal before us that once a valid sale had taken place and no application filed to set it aside under any of the rules, 89, 90 or 91, the Court had no option but to confirm the sale and that the fact that on the date of the stile no amount was owing under the revised decree for which the property could have been sold, was not a ground for refusing confirmation where the interests of a stranger purchaser were involved. The learned counsel for the appellant based his contention on the authority of Nanhelal v. Umrao Singh , Sorimuthu Pitlai v. Muthukrishna, I.L.R. Mad 808: (A.I.R. 1933 Mad. 598) and Ambujammal v, Thangavelu Chettiar, : AIR1941Mad399 . The legislative history of Section 65, C. P. C., the language Of Rule 92 of Order XXI, which appears imperative and the considerations for safeguarding the interests of a bona fide stranger purchaser for value have led the Court in these cases to the conclusion that the subsistence of an outstanding decree on the date of confirmation is not an essential requisite for confirmation of the sale and that the only grounds for refusing confirmation are those provided by the Code . was a case /in which after a sale to a stranger in execution of a decree and before confirmation thereof, the decree -holders and the judgment -debtors reported an adjustment of the decree out of court and it was prayed that the same might be recorded and certified and that the properties sold be released to the judgment -debtors from the sale.