(1.) THIS civil revision petition has been preferred by the auction purchaser in execution of the decree in O.S.No.54 of 1968, Sub Court, Chidambaram, against the order passed in E.A.No.280 of 1981 allowing the application filed by the 1st respondent herein under 0.34, Rule 5, Code of Civil Procedure (hereinafter referred to as the Code) praying that the court auction sale in favour of the petitioner in 6.3.1972 should be set aside.
(2.) BRIEFLY stated, the circumstances, under which the 1st respondent preferred E.A.No.280 of 1981 are as follows:In O.S.No.54 of 1968, instituted by the 2nd respondent herein against K.S.Venkatarama Iyer and Ramanatha Iyer, as Mangers of the Joint Hindu family, to enforce a security bond dated 20.7.1966 executed by them, a preliminary decree was passed on 7.11.1968, which was also followed by a final decree on 10.11.1969. In execution of the decree so obtained, the 2nd respondent brought the property subjected to security to sale in E.P.No.24 of 1970 in O.S.No.54 of 1968. During 'the pendency of the execution proceedings, Ve-nkatarama Iyer died on 17.9.1970 and the 1st respondent herein and others were brought on record as his legal representatives. Subsequently in E.P.No.24 of 1970, the property- secured was purchased by the petitioner on 6.3.1972 and for confirmation of the sale, it was posted to 10.4.1972. Thereafter, numerous proceedings were taken under the provisions of the Code as well as these under the Debt Relief Acts and it is not necessary to notice all those proceedings in detail, except two of them, as would be noticed later. According to the case of the 1st respondent as the sons of deceased Venkatarama Iyer, who was impleaded in the course of the execution proceedings also, he is entitled to redeem the property sold in court auction on 6.3.1972, as the sale had remained unconfirmed. Stating that he had paid a sum of Rs.30,000 to the 2nd respondent/decree holder and he had also agreed to record full satisfaction of the decree, the 1st respondent claimed that the court sale in favour of the petitioner is liable to be set aside under the provisions of 0.34, Rule 5 of the Code, as he had also deposited a sum- of Rs.1,816 into court towards profits and poundage to the petitioner.
(3.) IN order to appreciate the aforesaid contention, it would be necessary to make a brief reference to the result of the proceedings earlier taken on two occasions, as stated earlier. IN Neelambal v. Mohanarama Chettiar, (1980)2 M.L.J. 1, this Court remitted the proceedings taken out in E. A.Nos.14 and 33 of l979 in O.S.No.54 of l968 under Secs.l9 and 16 of Tamil Nadu Act 38 of 1972, on the ground that it would be necessary to investigate whether the petitioner therein was entitled to claim the benefits of the provisions of the Act, referred to earlier. Again, in Neelambal v. Mohanarama Chettiar, (1984)2 M.L.J. 264, with reference to the very court sale in favour of the petitioner herein, it was held that when other proceedings claiming benefits under Debt Relief Act were pending, which may result in affecting the rights of parties even to execute the decree, it would not be appropriate to proceed to confirm the sale and in that view, the confirmation of the sale in favour of the petitioner also was set aside on 27.3.1983. It is thus seen that in this case, even if as a result of the earlier unsuccessful proceedings taken out by the 1st respondent and others, the court auction sale in favour of the petitioner, should be regarded as having been confirmed, such confirmation had been clearly set at naught by the decision in Neelambal v. Mohanarama Chettiar, (1984)2 M.L.J. 264. This would, therefore, be a case where, though the sale had been confirmed earlier, such confirmation had been set aside and that too at a point of time when the application under 0.34, Rule 5 of the Code filed by the 1st respondent was pending, The resulting position, therefore, is that the court sale had remained unconfirmed, as the earlier confirmation had been set aside and the application for setting aside the court sale tinder 0.34, Rule 5 of the Code was already there in regard to an unconfirmed court sale. IN view of the adjudication in Neelambal v. Mohanarama Chettiar, (1984)2 M.L.J. 264, there to the effect that the confirmation of the sale was set aside, it is unnecessary to consider the other question whether there could be an automatic confirmation with reference to the provisions of 0.21, Rule 92 of the Code or not. Thus, on the facts and circumstances, of this case, the sale remained unconfirmed and the application filed by the 1st respondent under 0.34, Rule 5 of the Code was also there and therefore, there is no substance in the contention of the learned counsel for the petitioner that the application under Q.34, Rule 5, was not entertain-able, as the sale had already been confirmed.