BARURAM KALOWAR Vs. UPENDRA NATH DAS

JUDGEMENT

(1.) THIS is a petition by an auction purchaser against an order of the Munsif of Howrah who allowed the opposite parties to pay the decretal amount Under Order 34, Rule 5 and thereafter set aside the sale. The facts in short are that the property in question belonged to one Debidin Kalwar and on account of arrears of municipal rates the Chairman of the Howrah Municipality attached the property and sold it in auction, arrears of rates being the first charge on the property. The sale was held on 16 June 1932. Thereafter on 22 July, 1932 opposite party 1 Upendra Nath Das who had lent money to Debidin on a mortgage of this property made a petition Under Order 21, Rule 90 to set aside the sale alleging fraud and material irregularity; The learned Munsif on hearing the parties set aside the sale. In appeal the District Judge by his order dated 18 September 1933 dismissed the application Under Order 21, Rule 90. That date was the last working date before the civil Court long vacation. The Court reopened on 23 October. The record was received by the Munsif from the District Court on 25 October and on that date opposite party 1 made an application Under Order 34, Rule 5 to set aside the sale upon payment of the necessary amount. The petitioner opposed that application. Upon hearing both parties the Court by its order dated 28 November 1933 allowed the application of the opposite party on receipt of the necessary amount and the sale was set aside. It is urged by the learned advocate appearing for the petitioner that the order of the District Judge dated 18 September 1933 whereby he dismissed the application Under Order 21, Rule 90 and stated that the sale would stand, is equivalent to confirmation of sale and that a further confirmation by the Court below was not necessary. THIS does not appear to be a correct argument having regard to the wording of Order 21, Rule 92 which states inter alia that after an application Under Rule 90 is disallowed the Court shall make an order confirming the sale. "Court" here means the "Court which held the sale." In my opinion, the Court below was correct in holding that after the District Judge had passed the order disallowing the application Under Rule 90, it was the duty of the Munsif who had held the sale to confirm the sale without any delay, and until the Munsif confirmed the sale the opposite party could take action Under Order 34, Rule 5.

(2.) IT was urged for the petitioner that if the Munsif omitted to confirm the sale the auction purchaser should not suffer by the default of the Court. But in this case the Court did not make any default. The order was passed on 18 September which was the last date before the civil Court vacation. The Court re-opened on 23 October and the record was received on 25 October. Before 25 October the Munsif was not in a position to confirm the sale and on that very date opposite party 1 made an application Under Order 34, Rule 5. The Munsif therefore had no option but to allow the opposite party to deposit the money as provided by Rule 5. IT is true that the deposit was made by the opposite party more than a year and four months after the sale. IT is urged that it is a gross hardship upon the auction purchaser to set aside the sale after a year and four months without giving him adequate compensation. Under Rule 5 as it stood before the amendment the defendant could pay the requisite amount in Court on or before the data fixed for the sale or he could pay the amount within 30 days after the sale Under Order 21, Rule 89, but after 30 days from the date of the sale he could not deposit the money. After the amendment however the judgment debtor may Under Rule 4(2) apply for the postponement of the final decree and thereby delay the execution and after the final decree is made and the sale has been held he may deposit the money at any time before the confirmation of the sale even though the judgment-debtor by his own action prevents the confirmation of the sale for a long period. Under Rule 5 as it stands, if the judgment-debtor by his manoeuvres prevent confirmation for a year and four months or even for a longer period, he may, thereafter before the sale is confirmed, apply Under Rule 5 paying all the requisite amounts and demand the sale to be sat aside and the auction purchaser will get his money together with compensation at the rate of 5 per cant. As to the hardship produced by such action on the part of the judgment-debtor the remedy lies in the amendment of Rule 5. But so long as Rule 5 stands the judgment-debtor may apply at any time before the confirmation of the sale even though he has by his own action delayed the confirmation for many years. The Rule is discharged with costs, hearing fee two gold mohurs.