NEELAMBAL Vs. MOHANRAM CHETTIAR

JUDGEMENT

(1.) Auction purchaser in O.S.No. 54 of 1968 on the file of Sub Court, Chidambaram filed E.A.No.25 of 1982 under Order 21, Rule 22 read with Section 151 of the CODE OF CIVIL PROCEDURE, 1908for confirmation of the Court sale - held on 6-3-1972 and for the grant of sale certificate, praying that the said orders be passed ex-parte and out of order. He also filed a petition under Section 151 of the Code for dispensing with notice in the application filed under Order 21, Rule 22 of the Code. Court below,by not taking into account E.A.Nos.14 of 1979, 33 of 1979, 172 of 1981, 173 of 1981 and 220 of 1981, which are applications filed for cancellation of the auction sale, and Which are still pending disposal, had ordered the petition for confirmation of sale. Aggrieved against the said order, this revision petition is filed by Neelambal and Valambal, who are heirs of the judgment-debtorand who have claimed reliefs, under Acts 38 of 1972, 13 of 1980 and 10 of 1981 for setting aside the auction also, for recording part satisfaction etc., which applications are still pending disposal.

(2.) Mr.V.Sridevan, learned counsel for judgment-debtors, submits that when applications have been filed for grant of relief under special enactments, court below ought not to have confirmed the sale under Order 21, Rule 92 of the Code, whereas Mr.M.Srinivasan, learned counsel for auction purchaser, submits that when applications, if any, filed under Rules 89 to 91 of Order 21 had not been pending, then, the court has no choice in the matter but to confirm the sale and such a sale must be made absolute under the Civil Procedure Code irrespective of whatever be the other provisions made under special enactments. He further goes to the extent of contending that it is the duty of the court to confirm the sale, irrespective of an application being filed to that effect, and by relying upon the decision in Sashi Bhusan v. Ramlal, A.I.R.1977 Cal.351, he would go to the extent of contending that no formal order requires to be passed under Order 21, Rule 22 of the Code and hence, the order passed by the court below cannot be termed as having been passed hastily and without any regard to the provisions of Order 21, Rule 22 C.P.C.

(3.) On the scope of Order 21, Rule 22,in Janak Raj v. Curdial Singh, (1968)1 S.C.J. 222: (1967)2 S.C.R.77: A.I.R.1967 S.C.608, it has been held that, notwithstanding the factum of sale held ex-parte having been set aside, still the sale should be confirmed because the law makes ample provision for the protection of the interests of judgment-debtor, in spite of confirmation of sale, if ultimately he is to succeed in other proceedings. Apart from exceptional cases where court will refuse to confirm a sale because it was held without giving notice to the judgment-debtor or the court was misled in fixing the reserve price or where there was no decree in existence at the time when the sale was held ordinarily if a sale had been validly held, ar application for setting it aside can only be made under Order 21, Rules 89 to 91, and if no such application was made or when made had been disallowed, then the court has no choice but to confirm the sale. In Hukam Chand v. Ramsilal, (1968)2 S.C.J.32: (1967)3 S.C.R.695: A.I.R.1968 S.C.86,it was reiterated that in spite of an application having been filed under Order 3U, Rule 5(1), if Order 21, Rule 92 is invoked, and when it contemplates only certain conditions to be satisfied, no other factor could be taken into account to refuse to confirm the sale. An application filed under Order 34, Rule 5 does not empower the court to extend the time, and all that it does is to permit the mortgagor-judgment-debtor to deposit the amount before confirmation of sale . The earlier decision above referred to was relied upon in this decision, to take this view, even when an application under Order 34, Rule 5 was pending.