MANDI MIA Vs. SEKANDER MEA

JUDGEMENT

(1.) This is an appeal on behalf of the decree-holder auction purchaser and it arises out of a proceeding for confirmation of an execution sale. The facts lie within a very narrow compass and may be stated as follows : The appellant before us obtained a money decree against the respondents and in execution of the same put up to sale an occupancy holding belonging to the latter. The sale was held on 7 February 1933 and the purchaser was the decree-holder himself. It appears that there was a proceeding to set aside the sale under Order 21, Rule 90, Civil P.C., which was eventually dismissed some time in the year 1934. We find from the order sheet of the execution case that on 5 March 1935 the Court passed an order directing the appellant to deposit the landlord's fees within seven days. This order was not complied with and on 19 June 1935 the petition for confirmation of sale was rejected. Nothing was done for a period of three years after this and on 10 September 1938 the decree-holder auction purchaser made the present application for confirmation of sale and prayed at the same time for exemption from payment of the landlord's fees on the ground that after the amending Act (Bengal Act 6 of 1938) was passed, the payment of such fees was not necessary.

(2.) The trial Court by its order, dated 5 November 1938, directed the appellant to put in the landlord's fee within 15 November 1938 on payment of which the sale would be confirmed. The decree-holder however did not pay these fees and the result was that the Court rejected the petition for confirmation of the sale. Against this order an appeal was taken to the Court of the District Judge of Noakhali. The learned District-Judge, who heard the appeal, differing from the trial Judge, held that it was not necessary for the decree-holder to deposit the landlord's fees after the passing of the Bengal Act, 6 of 1938. The District Judge was of opinion that as the sale was held prior to the year 1938, the substantive right of the landlord to recover his fees was not in any way affected by the amending Act, but as the procedure by which such rights could be enforced under the old Act was no longer in existence, it was for the landlord to recover the amount by way of a suit. The District Judge however held that the application for confirmation of sale which was made by the decree-holder in the present case came within the purview of Art. 181, Limitation Act, and as the application was filed more than three years after the date of the sale and also more than three years after the application under Order 21, Rule 90, Civil P. C, had been disposed of, the petition must be rejected as time-barred. It is against this order that the present second appeal has been preferred.

(3.) Mr. Das, who appears in support of the appeal, has argued before us that the view taken by the District Judge on the question of limitation is wrong and Art. 181, Limitation Act, has no application to the facts of the present case. In our opinion, this contention is sound and must prevail. Under Order 21, Rule 92, Civil P. C, the sale has got to be confirmed when there is no application under Order 21, Rules 89, 90 or 91, Civil P. C, or when such application is made and disallowed : in the absence of an order setting aside a sale, it is the duty of the Court to confirm the sale and there is no provision in the Civil P. C. for an application to be made by the auction purchaser for confirmation of the sale. As was observed by the Judicial Committee in Venkata Jagannatha Rao V/s. Venkata Kumara Mahipati Surya Rao , the law does not prescribe any special period for an application for an order of confirmation. The principle seems to be that when the Code itself enjoins the duty upon the Court which it is bound to do suo motu without any application by any party, such application, if actually made, is wholly superfluous and has no further utility than that of inviting the Court to do what it is bound to do under the law. Such application would not attract the operation of Art. 181, Limitation Act, which contemplates a case where a Court has got to be moved by an application and without which it is not bound to exercise its powers. This view is supported by a number of decisions of different High Courts in India and reference may be made among others to the cases in Krishna V/s. Anukul Chandra ( 02) 6 CWN 190, Vithal Janardan v. Vithojirav Putlajirav ( 82) 6 Bom 586 and Kylasa Goundan V/s. Ramasami ( 82) 4 Mad 172.