S. R. Subramaniam v. Thavasinandam — 1987 DIGILAW 155 (MAD)

Judgment :- 1. At the outset, it is to be mentioned that in C.M.P. 1783 of 1987 in C.M.S.A. 35 of 1981, I have passed an order permitting the petitioner herein to have the C.M.S.A., converted into a C.R.P. The revision petitioner was the judgment debtor in S.C. S. 205 of 1972 on the file of the Court of the District Munsif, Manamadurai. In execution of the decree obtained in the said suit, the first respondent filed E.P. 278 of 1974. In the execution proceedings, the petitioners property was sold on 7-1-1975 in court auction and the second respondent herein is the successful court auction purchaser. The matter was posted for confirmation of sale on 10-2-1975. In the meanwhile, i.e., on 15-1-1975, Tamil Nadu Ordinance 1 of 1975 came into force, and on the assumption that the petitioner is entitled to the benefits of the Ordinance, the executing court suo motu stayed all further proceedings when the matter came up for confirmation on 10-2-1975. Again, on 24-1-1976 the executing court vacated the stay suo motu on the view that the Ordinance was not a bar for confirmation of the sale as confirmation was not part of the execution. Consequently, the executing court confirmed the sale. Aggrieved by the confirmation of sale, the petitioner filed E.A. 113 of 1976 to review the order of confirmation of sale and to set aside the sale as well. That application was filed substantially on the ground that confirmation was part of the execution and, therefore, when the ordinance was in force, the court went wrong in confirming the sale and, therefore, the matter would fall under S.47, C.P.C. 2. The first respondent decree holder as well as the second respondent-auction purchaser vehemently opposed the application contending that the confirmation of sale was not a step in execution as it was not part of execution of the decree. It was also contended, the petitioner having failed to file any application to set aside the sale under O.21, Rr.89, 90 or 91, C.P.C, the confirmation of sale was mandatory and no notice was necessary before confirmation of the sale. It was also contended on behalf of the respondents that the application filed under S.47, C.P.C., was a misconceived one as it did not relate to execution, discharge and satisfaction of the decree, as there was no decree subsisting. 3. It was also contended on behalf of the respondents that the application filed under S.47, C.P.C., was a misconceived one as it did not relate to execution, discharge and satisfaction of the decree, as there was no decree subsisting. 3. The executing court dismissed the application holding that no steps have been taken by the judgment debtor to set aside the sale and no ground was alleged on what basis the sale was void and, therefore, the petitioner had no case to be pursued. The executing court also held that the act of confirmation is only an administrative act especially when no step was taken by the judgment debtor to have the sale set aside on any of the grounds mentioned in O.21, Rr.89, 90 and 91, C.P.C. 4. Aggrieved by the dismissal order of the application, the petitioner preferred C.M.A. 37 of 1976 to the Sub Court, Sivaganga. The learned Subordinate Judge, by judgment dated 7-4-1977, held that the confirmation of sale is not part of execution, that the confirmation of sale does not fall within S.47, C.P.C, and that the sale is not liable to be set aside. On that view, the lower appellate Court confirmed the order of the executing court. 5. It is under these circumstances, the revision petition is filed. Mr. Peter Francis, learned counsel for the petitioner elaborately argued the matter and contended that the view taken by the Courts below that the confirmation is not part of execution is incorrect and that the court having initially stayed all further proceedings, suo motu, ought not to have confirmed the sale without notice to the judgment debtor. According to the learned counsel for the petitioner, the confirmation of sale by vacating the stay without notice has caused irreparable loss and prejudice to the petitioner. The petitioner, in law, is given 30 days time to deposit the decree amount and have the sale set aside, and for that purpose, only, the executing court initially adjourned the matter to 10-2-1975, the Court suo motu stayed all further proceedings. The judgment debtor was under the impression that the time for deposit was extended as a result of the stay and, therefore, before vacating the stay and confirming the sale, the petitioner must have been put on notice. The act of the court should not prejudice any party. The judgment debtor was under the impression that the time for deposit was extended as a result of the stay and, therefore, before vacating the stay and confirming the sale, the petitioner must have been put on notice. The act of the court should not prejudice any party. He further contended that the fact that the petitioner is an agriculturist is not in dispute. The executing court went wrong in vacating the stay when the life of the Ordinance was further extended and the same was in force on the date when the Court vacated the stay. According to the learned counsel, if the court was wrong in vacating the stay, the further order confirming the sale will have to go. The learned counsel cited the following decisions— Balakrishna Gounder v. Vadivel Mudaliar 1; Bangaru Chettiar v. San Basha Sahib 2 and Jang Singh v. Briglal 3. 6. Mr. M. V. Krishnan, learned counsel for the respondents, argued that there was no application under O. 21, R. 89, 90 or 91, C.P.C. by the petitioner-judgment debtor and therefore, it was obligatory on the part of the executing court to confirm the sale under O. 21, R.92, C.P.C. No notice is necessary before ordering confirmation as confirmation is only an administrative act and it is not part of the execution. As execution was over on 7-1-1975, namely, on the date of the sale, the Ordinance which was subsequent to the date of sale, namely, 15-1-1975, will have no effect on the sale held on 7-1-1975. Therefore, the court below was right in confirming the sale. In fact, according to (he learned counsel for the respondents, the court below was not right in suo motu staying the proceedings on 10-2-1975. The learned counsel further submitted that the reasons given by the court below are quite in accordance with the decisions of this Court and in any event, this Court, sitting in revision, will not interfere with the decision of the court below. In support of this contention, he cited the following decisions, namely, Janakraj v. Gurdial Singh 4, Hukumchand v. Bansilal Wanchoo 5, Seth Nanhelal v. Umrao Singh 6 and Ambujammal v. Thangavela Chettiar 7. 7. In support of this contention, he cited the following decisions, namely, Janakraj v. Gurdial Singh 4, Hukumchand v. Bansilal Wanchoo 5, Seth Nanhelal v. Umrao Singh 6 and Ambujammal v. Thangavela Chettiar 7. 7. The executing Court, while rejecting the application for reviewing the order of confirmation and for a consequential setting aside of the sale has held as follows— “It may at the outset be mentioned that the auction sale took place on 4-1-1975. The matter is posted to 20-2-1975. for confirmation of sale. In the meantime, Act 10 of 1975 came into force and the proceedings were stayed till 4-1-1976. On 15-1-1976 Ordinance 7 of 1976 came into effect extending the life of Act 10 of 1975. On 21-1-1975 an endorsement on the petition E.P. No. 270 of 1974 is made to the following effect; sale is over in pursuance of the execution petition. No petition to set aside the sale has so far been filed within the time allowed by law. Hence the sale is confirmed as the Ordinance is no bar at this stage. E.P. terminated. Full satisfaction recorded Issue sale certificate—The petitioner herein not seeking recourse under any one of the provisions under C.P.C. to have the sale set aside, within the prescribed time, the only course open to the court is to have the sale confirmed. That is what the court has done in the instant case. This petition for review of the order of the confirmation of sale and for setting aside the sale besides declaring it as void has been filed belatedly long after the expiry of the prescribed time It is further represented that the judgment debtor is ready and willing to pay of the decree amount. This he could have done within one month of the court auction sale and asked for setting aside the sales. He not having done so within the prescribed time and no ground having been urged to declare the sale as void the confirmation of the sale in the instant case is only an administrative act as there is nothing to be done further in the matter of realisation of the amount.” 8. The lower appellate Court expressed its view as follows:— “Admittedly no petition under O. XXI, Rr.89 or 90 or 91, C.P.C. was filed to set aside the sale. In the absence of such application the court is bound to confirm the sale. The lower appellate Court expressed its view as follows:— “Admittedly no petition under O. XXI, Rr.89 or 90 or 91, C.P.C. was filed to set aside the sale. In the absence of such application the court is bound to confirm the sale. It is the statutory obligation cast upon the court to confirm the sale. This can be done suo motu. Even in a case where the decree was set aside subsequently the court was bound to confirm the sale. It is a judicial act and there is no discretion given to the court not to confirm the sale. These are the principles enunciated in the decisions in Janakraj v. Gurdial Singh 4 and Veda Gounder v. Arunachala Chettiar 8. It is not that for the confirmation of the sale the auction purchaser or the decree holder should file a petition, that the judgment debtor should file a counter, that both of them should be heard and an order should be passed, and only in a case where these are required it should amount to proceedings. But here even without an application the court had the power to confirm the sale. The confirmation of sale comes only after in pursuance of the decree after the sale over. Confirmation of sale was not recovery of amount. It was not delivery of property. Though confirmation is judicial act it does not form part of the execution, delivery proceedings and the sale of the property. That did not form part of the execution is seen from the fact that there was nothing further to be executed. The fact that the appellant was given time for deposit of the amount before confirmation does not mean that there was something to be further executed and that deposit of the amount within that period also formed part of the execution of the decree. A perusal of the special provisions contained in Ordinance I of 1975 shows that some benefit goes to the person entitled to the benefit under them. It is not that merely because a person claims to be an agriculturist he is entitled to the benefit. Even if a person is an agriculturist, if he is proved to be falling within the exemption, then he is not entitled to get the benefit. To invoke the provisions under Ordinance I of 1975, it is mandatory that the parson claiming should file a petition. Even if a person is an agriculturist, if he is proved to be falling within the exemption, then he is not entitled to get the benefit. To invoke the provisions under Ordinance I of 1975, it is mandatory that the parson claiming should file a petition. Without an application for stay claiming the benefit he is not entitled to claim and the Court has no inherent power to stay without application. This aspect is evident from S 4. The Court is not bound to stay unless there is an application. A perusal of S.4 says that should be stated. It does not include confirmation of sale. It is true that the execution of the decree is included in it, but execution of decree does not include confirmation of sale in pursuance of the decree. The sale was confirmed on 10-2-1975. The Court had entertained a doubt originally as a result it stayed as if the matter fell within the ambit of Ordinance 1 of 1975 which was later found to be incorrect as a result of which it reviewed the order holding that the confirmation being not part of execution the ordinance was not a bar for the sale being confirmed. Since there was nothing for the Court to review a patently wrong order, it cannot be said that it has no jurisdiction and rectify its own mistake. The petition for setting aside the sale under S.47, C.P C. was filed several months since the date of confirmation. The appellant could have filed for the sale being set aside under any one of the relevant provisions of O. XXI, C.P.C. He did not do so. After the confirmation of the sale there was nothing for the court to execute the decree. The decree was executed, the sale was confirmed and deliv ery proceedings were taken. This petition was filed at the time when the decree itself was satisfied by reporting full satisfaction memos. No part of the decree remained unexecuted. The execution decree was not pending. The sale which could have been attempted to be set aside under the relevant provisions of O. XXI, C.P.C. In the above circumstances, did not fall within the ambit of S.47 C.P.C. is quite obvious.” 9. No part of the decree remained unexecuted. The execution decree was not pending. The sale which could have been attempted to be set aside under the relevant provisions of O. XXI, C.P.C. In the above circumstances, did not fall within the ambit of S.47 C.P.C. is quite obvious.” 9. From the extracts in the judgments of the Court below, it will be seen that the courts below were of the opinion that in the absence of any application to set aside the sale, the confirmation was in order even though it was subsequent to the Ordinance and while the provisions of the Ordinance subsequently replaced by the Act were in force. In other words, the view taken by the lower appellate court was that confirmation is not part of execution and the sale having taken place even prior to coming into force of the Ordinance, there was no bar for confirming the sale. It is to be seen whether the view taken by the courts below is correct. 10. Though Mr. M.V. Krishnan, learned counsel for the respondents contended that confirmation is not part of the execution, he has not cited any direct decision to that effect. In Kanagasabhai Pathar v. Poornath-ammal 1 , the principle laid down is that where no application is made for setting aside the sale within the time limited, it is obligatory on the part of the Court under O.21, R.92, C.P.C., to pass an order confirming the sale notwithstanding the circumstances that the decree holder had admitted satisfaction of the decree. In Ambujammal v. Thangavelu Chettiar 2, this Court has held as follows:— “Where an innocent stranger has purchased the property in execution of a decree, the mere fact that that decree has been set aside in appeal prior to the confirmation of the sale is not a ground for refusing to confirm the sale.” In Veda Goundar v. Arunachala Chettiar 3, Rajagopalan, J. has taken the following view:— “Confirmation of sale under O.21, R.92 does not require an application by the auction purchaser. Confirmation is a statutory obligation imposed on the court, if the requirements of O. 21, R.92, C.P.C. are satisfied. Confirmation is a statutory obligation imposed on the court, if the requirements of O. 21, R.92, C.P.C. are satisfied. Even if the decree holder as auction purchaser formally applies for confirmation of the sale, it would not an application to which Art. 181 would apply, and no question of limitation would arise.” In Janak Raj v. Guardial Singh 4, the Head note reads as follows— “The question for determination was whether a sale of immovable property in execution of a money decree ought to be confirmed when it is found that the ex parte decree which was put into execution has been set aside subsequently. Held that, There is no provision in the C.P.C. of 1908 either under O. 21, or elsewhere which provides that the sale is not to be confirmed if it is found that the decree under which the sale was ordered has been reversed before the confirmation of sale. The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The C.P. Code 1908 makes ample provision for the protection of the interests of the judgment debtor who feels that the decree ought not to have been passed against him. The C.P. Code 1908 makes ample provision for the protection of the interests of the judgment debtor who feels that the decree ought not to have been passed against him. The judgment debtor not having resorted to the provisions of O.21, R.89, it must be held that the appellant-auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside.” In Hukam Chand v. Bansilal 1, the Supreme Court has observed thus— “On a harmonious interpretation of O.34, R.5 and O.21, R.92, it was clear that though the mortgagor has the right to deposit the amount due at any time before confirmation of sale, there is no question of his being granted time under O.34, R.5 and if the provisions of O.21, R.92(1) apply, the sale must be confirmed unless before the confirmation the mortgagor judgment debtor has deposited the amount as permitted by O.34, R.5, C.P.C.” From the judgments referred to above, I do not find any direct decision to the effect that confirmation is not part of execution. 11. On the other hand, the Full Bench decision cited by the learned counsel for the petitioner appears to suggest that confirmation is part of execution proceedings. In Bangaru Chettiar v. San Basha Sahib 2, Ramanujam, J. speaking for the Full Bench, has held as follows:— “However, the learned counsel for the appellant points out that though the sale in this case has been held after the Act came into force, the confirmation had not yet taken place and, therefore, the appellant can seek to set aside the sale on the ground that the decree has been scaled down, and, therefore, the sale should not be confirmed. As the sale had not been confirmed and possession of the property sold has not been delivered to the auction purchaser, execution proceedings should be taken to be pending and now that the appellant has succeeded in getting the decree scaled down, he is entitled to ask the executing court to give effect to the orders passed under S.19, scaling down the debt . Even if S.23-C has no application to sales held after the Act, it does not mean that the sale can be confirmed regardless of the effect of scaling down application. Even if S.23-C has no application to sales held after the Act, it does not mean that the sale can be confirmed regardless of the effect of scaling down application. Even then the appellant cannot seek relief under S.23-C, but the relief of setting aside the sale can be claimed in proceedings under the Civil Procedure Code.” (underlining mine.) Again, a decision of this Court in Bala-krishna Gounder v. Vadivel Mudaliar 3, rendered interpreting the provisions of the Debt Relief Act with which we are concerned, has taken the view that after the coming into force of the provisions of the Debt Relief Act, the executing court cannot confirm the sale. Padmanabhan, J., in that decision, cited with approval a Division Bench judgment of the Kerala High Court in Kannan v. Krishnan Nair 4. The relevant portion reads as follows:— “Apart from that, for interpreting S.4 of Ordinance No. 1 of 1975 it is not relevant to consider whether the proceeding that is pending is ministerial or administrative. All applications in execution of a decree for the repayment of a debt shall stand stayed. In this particular case, R.E.P. 62 of 1974, was pending on the file of the Sub Court and when once the Act came into force, the said execution petition got automatically stayed.” It will be useful to refer in this connection to the decision in Kannan v. Krishnan Nair 4, which related to a case under the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act 5 of 1954. On a court auction sale held on 25th January, 1954, a stranger purchased the property in auction. The sale was confirmed on 1st March, 1954. An application was filed to annul the sale on the ground that the sale took place in contravention of the provisions of Act 5 of 1954 which came into force on 6th February, 1954. It was contended that the sale took place before the Act was enacted, but the confirmation was made subsequent to the Act. It was contended on behalf of the auction purchaser before the High Court that S 4 of the Act relating to the stay of proceedings contained no inhibition against the confirmation of the court sale which had taken place before the Act came into force. The contention was advanced on the basis that the confirmation of the sale was only a ministerial act. The contention was advanced on the basis that the confirmation of the sale was only a ministerial act. In meeting this contention, Koshi, C.J., speaking for the Bench stated as follows:— “The learned District Judge thought that it was merely a ministerial act and therefore not hit by the section. To our minds the distinction between judicial and ministerial acts would appear to be irrelevant. The language of the section makes no such distinction, and it is comprehensive enough to include both. No doubt, normally, in the absence of an application to annul the sale on any ground the court which held the sale is bound to confirm it, but the point for decision is as stated above whether confirmation of sale is a proceeding in the application for execution of a decree. The courts volition is required to effect the confirmation and that to our minds, as observed by Patanjali Sastri, J. (as he then was) in Narayanasami v. Rudrappa 1, is part of the proceedings to execute the decree in the sense that it relates to the discharge of satisfaction of the decree. It is a recognised canon of interpreting ameliorative statutes like the one before us that their words must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the persons intended to the relief (see Raghuraj Sindhe v. Hari Krishnan 2, and Raj Ramtaram v. Mrs. Hill 3”. This case fully supports the contention raised by the learned counsel for the petitioner. 12. Another contention of the learned counsel for the petitioner is that the court initially on coming to know of the implementation of the Ordinance, stayed all the proceedings on its own accord. Subsequently, on a wrong assumption and without notice to the judgment debtor-petitioner vacated the stay and confirmed the sale and that act of the court prejudices the interest of the petitioner. According to the learned counsel, in such circumstances, the act of the Court should not be allowed to prejudice the petitioner. Subsequently, on a wrong assumption and without notice to the judgment debtor-petitioner vacated the stay and confirmed the sale and that act of the court prejudices the interest of the petitioner. According to the learned counsel, in such circumstances, the act of the Court should not be allowed to prejudice the petitioner. In support of this contention, he cited the decision in Jang Singh v. Brijlal 4, in which the Supreme Court has ruled as follows:— “It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to court and asks for the assistance of the court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is atleast shared by the court. If the litigant acts on the faith of that information the courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the court than the one that no act of court should harm a litigant and it is the bounden duly of courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim ‘ Actus Curiae Neminem grahavit .” 13. The view taken by the Court below that the application filed by the petitioner under S.47, C.P.C. was not maintainable is also not correct. Padmanabhan, J. in Balakrishna Gounder v. Vadivel Mudaliar 5, while dealing with a similar question coupled with a question of limitation, has ruled as follows— “The next contention of Mr. R.S. Venkatachari was that the application filed by the judgment debtor to have the sale set aside under S.47, C.P.C. was barred by Art. 127 of the Limitation Act. Padmanabhan, J. in Balakrishna Gounder v. Vadivel Mudaliar 5, while dealing with a similar question coupled with a question of limitation, has ruled as follows— “The next contention of Mr. R.S. Venkatachari was that the application filed by the judgment debtor to have the sale set aside under S.47, C.P.C. was barred by Art. 127 of the Limitation Act. When once it is found that the court had no jurisdiction to proceed with the sale in execution of a decree for repayment of a debt against an agriculturist under S.4 of Ordinance No. 1 of 1975 and that such a sale if held would be void and inoperative against the judgment debtor there is no question of the judgment debtor seeking to have the sale set aside. As a matter of fact, the prayer in the application is for a declaration that the sale held on 16th January 1975 was null and void. In the circumstances, Art. 127 of the Limitation Act which prescribes a period of 60 days from the date of the sale for an application to set aside a sale in execution of a decree does not come into play. In order that Art. 127 may apply, the sale must be binding on the applicant till it is set aside. Where the sale is void and not binding on the judgment debtor it need not be set aside and can be disregarded without any proceedings to set it aside. In such cases, there is nothing to be set aside and there can be no application to set aside the sale.” I respectfully agree with the above view expressed by Padmanabhan, J. 14. From the decisions cited by the learned counsel for the petitioner, it will be seen that anything done in the course of execution proceedings when the provisions of the Ordinance subsequently replaced by the Act was in force will be void ab initio , and no application for setting aside that order is necessary. Applying the principles laid down in Bangaru Chettiar v. San Basha Sahib 1, and Balakrishna Gounder v. Vadivel Mudaliar 2, I have no difficulty in holding that confirmation is part of execution proceedings and that the confirmation by the executing Court was totally without jurisdiction and liable to be set aside. Applying the principles laid down in Bangaru Chettiar v. San Basha Sahib 1, and Balakrishna Gounder v. Vadivel Mudaliar 2, I have no difficulty in holding that confirmation is part of execution proceedings and that the confirmation by the executing Court was totally without jurisdiction and liable to be set aside. Further, it is common ground that the executing court while vacating the stay and confirming the sale, did not give notice to the petitioner—judgment debtor. That act of the court should not prejudice the petitioner—judgment debtor, and applying the principles laid down by the Supreme Court in Jang Singh v. Brij Lai 3, the action of the executing court cannot be allowed to prejudice the petitioner. As pointed out earlier, the courts below proceeded on the basis that it is obligatory on the part of the petitioner to have filed an application to set aside the sale under O. 21, R.89, 90 or 91, C.P.C. and in the absence of such an application, the executing Court had every right to confirm the same. This view cannot be sustained as the confirmation was done while the provisions of the Debt Relief Act were in force which expressly barred the civil court from proceeding with the execution of a decree. The view taken by the court below that confirmation is not part of the execution is also not correct. 15. In the result, the C.R.P. is allowed and the confirmation of sale held on 7-1-1975 alone is set aside and the executing court is directed to proceed further in accordance with law, No costs.