MEER SHAFFI SAHIB Vs. ABDUL KHARIM

JUDGEMENT

(1.) The main question involved in this appeal is whether an order of the District Munsif of Tenali, dated the 31 December, 1938 confirming a sale held in execution is void or not. The respondents who are the legal representatives of the judgment-debtor stated that the order was void because it was passed after the death of their father and without their having been impleaded in the execution petition. On the other hand, the decree-holder who appeals argues that the provisions of Order 22, Rule 6 of the Civil P. C. read with the provisions of Order 21, Rule 92 justify the order confirming the sale even though the respondents father was dead at the time it was passed. It seems to me that this contention of the appellant is bound to prevail.

(2.) The facts are that there was an application by the respondents father to set aside the sale and that application came up for arguments before the District Munsif in October, 1938 when the applicant was still alive. Arguments were heard and judgment was reserved and judgment was not delivered dismissing the application to Set aside the sale until 31 December. Order 22, Rule 6 provides that a suit shall not abate by reason of the death of a party between the conclusion of the hearing and the pronouncing of the judgment, and Order 22, Rule 12 shows that Rule 6 in Order 22 will apply to proceedings in execution as well as to suits. The order therefore refusing to set aside the sale is valid by the provisions of Rule 6 of Order 22. Rule 92 of Order 21 provides that where an application under Rule 90 is disallowed, the Court shall make an order confirming the sale. An order confirming the sale is therefore a necessary corollary of an order refusing to set it aside. The learned Subordinate Judge in the order now appealed against has carefully differentiated between an order refusing to set aside a sale and an order confirming a sale as if they were separate and were orders necessarily to be passed upon separate proceedings. It seems to me impossible to uphold any such distinction, and even if it were granted for technical reasons that there were separate applications to be dealt with by the Court in connection with deciding whether to set aside a sale or not and passing an order confirming a sale, it would still necessarily follow that when arguments were being heard, both the petitions were being argued and therefore the provisions of Order 22, Rule 6 must apply to the final order in both the petitions. It would be an absurd position if an order refusing to set aside a sale is declared valid and an order confirming a sale should be declared void when the subject-matter of both the orders is essentially the same and the arguments in both the orders are the same. For these reasons I am of opinion that the view of the learned District Munsif in this case is to be preferred to the view of the learned Subordinate Judge and the order of the District Munsif of Tenali confirming the sale is not void.

(3.) In the result the application which has given rise to this appeal must necessarily be dismissed. The appeal is allowed and the respondents application dismissed with costs throughout.