KARUPPANNA GOUNDAN Vs. PONNUTHAYEE ALIAS SUBBAMMAL AND ORS.

JUDGEMENT

(1.) THE question referred to the Bench is as follows:

(2.) THAT being the case the question has to be viewed from the standpoint as to who are the necessary parties in an application under Order 21, Rule 90, Civil Procedure Code, after the expiry of thirty days from the date of the sale after which in the absence of any application under Rule Order 21, rule 80 or 90 of Order 21, Civil Procedure Code, or after an application is made and disallowed, the Court shall make an order confirming the sale whereupon the sale shall become absolute. Until the expiry of that period and the sale is confirmed in his favour, the auction -purchaser has not obtained any legal title to the properties sold and it is only an inchoate right which becomes fructified and crystallised when the sale becomes confirmed. Proviso to Sub -clause (2) of Rule 92, Order 21, lays down that no order setting aside the sale shall be made unless notice of the application has been given to all persons affected thereby. There was some argument at the Bar that this Proviso does not make it obligatory that the auction -purchaser is a necessary party to an application for setting aside a sale but is only a proper party and where it is intended to set aside the sale it would be sufficient if notice of the application is served on him on the footing that he is one of the persons affected by the application. In our view, the occasion for giving notice is before any order is passed on the petition. That is, it becomes necessary before an order setting aside the sale is made, that the auction -purchaser who is one of the persons affected thereby is heard. The state of things contemplated in Order 21, Rule 92, has reference to an application made within thirty days and this rule normally does not take into account an application after the sale has become absolute. If according to the Proviso to Sub -clause (2) of Rule 92, Order 21, it is necessary that the auction -purchaser is heard before an order setting aside the sale is made, he should be deemed to be a necessary party whose absence would invalidate any order passed without hearing him. If that is so, it is all the more necessary to hold that any application after the sale is confirmed for the invocation of Section 18 of the Limitation Act, must necessarily have as one of the parties the auction -purchaser whose rights by that time have become crystallised and which would take effect from the date of the sale. Under these circumstances we do not find any difference as regards the necessity of the auction -purchaser being made a party to an application to set aside a sale between a case where an application is made before the sale is confirmed and the one where the application is made after the confirmation of the sale. At page 908 of Mulla's Civil Procedure Code (12th edition), the learned author in discussing the question of necessary parties observed a; follows:

(3.) THEY further lay down that although the law does require that the application under Order 21, Rule 90, should be made within thirty days of the sale, it does not impose any period of limitation for the issue of notice.