Judgment :- Bhat, J. Respondents 1 and 2 are the legal representatives of the plaintiff who filed suit O.S.36 of 1979 before the Munsiffs Court, Adoor for partition and separate possession of his 1/7 share and other reliefs. The suit was decreed and a preliminary decree for partition was passed. The appeal filed by the first defendant was dismissed. Hence the second appeal by the first defendant. 2. The relevant facts can be summarised as follows: As a result of Ext. B1 assignment deed dated 7-5-1124 and Ext. A10 decree dated 15-1-1959 in O.S.61 of 1958 of the Sub Court, Quilon, seven persons namely, Kesava Pillai, second defendant and his brothers and sisters had equal right over the suit property. After the death of Kesava Pillai, his widow and children sold his 1/7 share to the plaintiff under Ext. Al sale deed dated 2-11-1976. It was on this basis that the plaintiff sued for partition and separation of his share and other reliefs. It appears, that even during the lifetime of Kesava Pillai his 1/7 share was sold in court auction in execution of a decree in O.S.61 of 1958 and purchased by the first defendant. Kesava Pillai filed an application to set aside the sale under Order XXI Rule 90 C.P.C. and that was dismissed. The order was not challenged in appeal or revision. Since only an undivided share was purchased, first defendant did not seek to obtain delivery of the property purchased by her. It appears, no express order had been passed confirming this sale. On these averments first defendant contended that long before Ext. Al sale deed in favour of the plaintiff, Kesava Pillai's 1/7 share had been purchased in court auction by the first defendant and, therefore, plaintiff has not derived any right. 3. The trial court found that the court auction sale had become infructuous by afflux of time on account of delivery not having been taken within one year of court auction sale and upheld the plaintiffs title. The appellate court held that the court auction sale not having been confirmed by an express order, the sale had not become absolute and, therefore, Kesava Pillai had not been divested of his title during his lifetime and plaintiff had acquired 1/7 right. 4. The appellate court held that the court auction sale not having been confirmed by an express order, the sale had not become absolute and, therefore, Kesava Pillai had not been divested of his title during his lifetime and plaintiff had acquired 1/7 right. 4. The only question which arises for consideration in the appeal is whether notwithstanding the failure of the executing court to pass an express order confirming the court auction sale in favour of the first defendant, first defendant can be said to have acquired right in the property? If this question is to be answered in affirmative, it must necessarily follow that the plaintiff has not derived valid right. If the question is answered in the negative, it must be held that the plaintiff has derived valid right and the first defendant has not acquired any right. 5. It is argued for the appellant that even without the court passing an express order in confirmation of the sale, the sale stood confirmed on the dismissal of the application under Order XXI Rule 90 C.P.C. and, therefore, first defendant's title as court auction purchaser has become absolute and Ext. Al cannot pass title in favour of the plaintiff. Learned counsel for the respondents would contend that law does not contemplate an automatic confirmation of the sale, the sale without confirmation is incohate and title does not pass to the court auction purchaser. Learned counsel for both sides have referred us to a large number of decisions and we will briefly refer to the more important among them. 6. In Janak Raj v. Gurdial Singh (AIR 1967 SC 608) the Supreme Court observed that in terms of Order XXI Rule 92 C.P.C. either when an application to set aside the sale has not been filed or when an application has been filed but dismissed, the court is bound to confirm the sale. 7. In the decisions in Baruram v. Upendra Nath (AIR 1934 Calcutta 822), Subramania v. Ramaswami (AIR 1937 Madras 560) and Ramachandra Bhagat v. Eva Mitra (AIR 1960 Patna 378) the question arose whether Order XXXIV Rule 5 CPC could be invoked where the application to set aside the sale under Order XXI Rules 89 and 90 C.P.C. has not been made or has been made but dismissed, but specific order confirming the sale has not been passed. It was held that though the executing court had duty to confirm the sale without delay, until the court did so the provision of Order XXXIV Rule 5 C.P.C. could be invoked since the sale cannot be deemed to have been automatically confirmed. 8. In Gopalan Nair v. Kutty (1961KLT 199), a learned Single Judge of this Court held that irrespective of the period lapsed after a court auction sale in a mortgage suit, Order XXXIV Rule 5 C.P.C. gives liberty to the judgment-debtor to pay up the amounts specified at any time before actual confirmation of the sale. However, learned judge did not consider the question whether there could be automatic confirmation of sale. 9. In Jagannatha Rao v. Surya Rao (AIR 1936 PC 204), as per a compromise after court auction sale, sale of all items except one item was confirmed. It was a case where within 30 days of court auction sale, no application was filed to set aside the sale. The Privy Council held that the title of the court auction purchaser had become unimpeachable and after the period for filing the application to set aside the sale expired, there was no person who could validly question the title of the auction purchaser and a certificate of sale granted by the court would in such a case be a formal document of title. 10. In Ramawami Iyer v. KomalavalliAmmal (AIR 1941 Madras 277) there was a court auction sale on the strength of a mortgage decree and the Madras Agriculturists Relief Act came into force a few days after the court auction sale and three months after the sale an application was filed under the new Act to scale down the debt. After referring inter alia, to the decision of the Privy Council in Jagannatha Rao's case (AIR 1936 PC 204) it was held that after the expiry of the period for filing an application to set aside the court auction sale, the auction purchaser can effectively sell the property purchased even in the absence of confirmation of the sale by the court. In other words, he has a saleable interest in the property and if he has so acquired interest, the judgment-debtor cannot be said to have saleable interest in the property and, therefore, if the judgment-debtor has no other agricultural property he would not be entitled to the benefit of the new Act. In other words, he has a saleable interest in the property and if he has so acquired interest, the judgment-debtor cannot be said to have saleable interest in the property and, therefore, if the judgment-debtor has no other agricultural property he would not be entitled to the benefit of the new Act. In Sashi Bhusan v. Ramlal (AIR 1977 Calcutta 351), dismissal for default of an application under Order XXI Rule 90 CPC was not followed by an express order of confirmation and after such dismissal, judgment-debtor filed -an application under Order XXXIV rule 5 C.P.C. The court held that no express order of confirmation was necessary and the sale had become absolute after dismissal of the application under Order XXI Rule 90 C.P.C. and hence Order XXXIV Rule 5 C.P.C. could not be invoked. In Pradyut v. Suryakant (AIR 1979 Bombay 166) it was held that in the case of a private transfer by the judgment-debtor after the sale but before confirmation, right acquired by the auction purchaser cannot be defeated. 11. In Joseph v. Kerala Service Bank Ltd. (1961 KLT 215) during the pendency of an application to set aside the sale under OrderXXI Rule 90 C.P.C., an application was filed for settlement of debts under S. ISoftheKeralaAgriculturists Debt Relief Act, 1958. A Division Bench of this Court held that pending confirmation of the sale, judgment-debtors have interest in the property sold and on that account they could be regarded as agriculturists under the Act. A similar question arose in Govinda Kymal v.Velu (1961 KLT 951) with reference to the Travancore-Cochin Indebted Agriculturists Relief Act. The application under Order XXI Rule 90 C.P.C. was dismissed by the lower court which further held that even before confirmation, the property has ceased to belong to the judgment-debtor. A learned Single Judge held that before confirmation was made title to the property remained with the judgment-debtor and the decree could not have been regarded as satisfied and hence the provisions of the new Act would be attracted. 12. A learned Single Judge held that before confirmation was made title to the property remained with the judgment-debtor and the decree could not have been regarded as satisfied and hence the provisions of the new Act would be attracted. 12. In Lord Krishna Bank Ltd v. Thomas Joseph (ILR 1975 (2) Kerala 640) before confirmation of a court auction sale held in pursuance of a mortgage decree, the auction purchaser of equity of redemption or the mortgagor applied to set aside the sale under rules 89 and 90 of Order XXI C.P.C. and the sale was set aside and part satisfaction was recorded and the execution petition dismissed. Fresh execution petition was filed for the balance amount due. A learned Single Judge held that till confirmation of sale property remained with the judgment-debtor, sale had not become absolute because an application was filed under Order XXI Rules 89 and 90 C.P.C. and the sale was later set aside. The judgment-debtor still continued to have right in the property. In Krishnankutty v. Balakrishna Guptan (1978 KLT 190) the question arose whether benefits of Kerala Act 35 of 1969 which amended the Kerala Land Reforms Act, 1963 which came into force after court auction sale but before express order of confirmation was passed would be available to the judgment-debtor. A learned Single Judge held that a specific order of confirmation is necessary and till such an order is passed title did not pass to the auction purchaser and the judgment-debtor was entitled to the benefits of the new Act. 13. Thankamv. Damodaran (1976 KLT 526-FB) was decided by a Full Bench of this Court. In a revenue sale held on 30-3-1955 plaintiff purchased the property of the defaulter and the sale was confirmed on 1-11-1957. In pursuance of another decree, first defendant (mortgagee of the property) purchased the same property and the sale was confirmed; the sale and the confirmation took place after the revenue sale and before confirmation of the revenue sale. Plaintiff sued to redeem the mortgage. First defendant contended that plaintiff had not acquired any title as per the revenue sale in as much as the first defendant had purchased the equity of redemption. Plaintiff sued to redeem the mortgage. First defendant contended that plaintiff had not acquired any title as per the revenue sale in as much as the first defendant had purchased the equity of redemption. The revenue sale was governed by the provisions of the Travancore-Cochin Revenue Recovery Act, 1951 and not by provisions of C.P.C. The provisions of the Act contemplated application to be filed before the Collector to set aside the sale within 30 days and the Collector making an order of confirmation of the sale on the expiry of 30 days if no application had been filed or if the application filed is rejected. The provisions in Order XXI Rule 92 C.P.C. that "thereupon (order confirming the sale) the sale shall become absolute" were absent in the corresponding provisions of the Act. The Full Bench held that confirmation in terms of the Act is a declaration of pre-existing right and title to the property in as much as the right of the purchaser to the property fully crystalises before that time. If no application is filed within the time provided or if such application is filed and sale is not set aside, the sale shall stand confirmed. After considering several decisions of the Supreme Court and the Privy Council, the Full Bench considered the observations of Patanjali Sastri, J. (as he then was)infte/naswam//yer'scase (AIR 1941 Mad. 277) to the effect that the court auction purchaser can effectively sell the property purchased even in the absence of confirmation of the auction sale by the court as he has saleable interest in the property and agreed with the observations. The Full Bench further observed: "If, after the expiry of the-period prescribed for setting aside the auction sale under the provisions of the C.P.C., the purchaser acquires saleable interest, even in the absence of confirmation by an order of the court, inspite of the provisions contained in Rules 92 and 94 of Order XXI CPC, the position in regard to derivation of title and saleable interest by the purchaser in revenue sale under the Travancore-Cochin Revenue Recovery Act, which does not expressly state that the sale shall become absolute and the property shall vest in the purchaser only on the sale being confirmed by the Collector, is much stronger." 14. There has undoubtedly been conflict of judicial opinion on the question in controversy in this case. There has undoubtedly been conflict of judicial opinion on the question in controversy in this case. Many of the decisions cited relate to the impact of Order XXI Rule 92 CP.C. on Order XXXIV Rule 5 C.P.C. Cases of mortgage decrees coming under Order XXXIV Rule 5 CPC must necessarily stand on a different footing than cases of auction sale in execution of money decrees. Provisions of Order XXXIV are special provisions regarding mortgage decrees based on the principle of subsistence of the mortgage debt till redemption and the right to the mortgagor to discharge the mortgage debt till then. These decisions cannot be invoked for the purpose of deciding whether without an express order of confirmation of a sale in pursuance of money decree, the sale can be deemed to have been confirmed and title can be deemed to have been vested in the auction purchaser. Cases coming under Order XXXIV Rule 5 C.P.C. must be regarded as an exception to the general rule. Therefore, the decisions under Order XXXIV Rule 5 C.P.C. may not be of much assistance to us. 15. In our opinion, the decision of the Privy Council in Jagannatha Rao's Case (AIR 1936 PC 204) sheds considerable light over this controversy. In that case the sale was confirmed in regard to all properties except one, though on the basis of a compromise, but specific order of confirmation was not passed in regard to that item. Privy Council held that after the period for filing an application to set aside the sale was over there is no person who could validly question the title of the auction purchaser and the certificate of sale would in such a case be a formal document of title and the title of the auction purchaser became unimpeachable. Following this decision, the Division Bench of Madras High Court in Ramaswami Iyer's case (AIR 1941 Mad. 277), speaking through Patanjali Sasthri, J. (as he then was) held that after the expiry of the period of application to set aside the sale, auction purchaser can effectively sell the property even in the absence of confirmation and judgment-debtor cannot be said to have saleable interest. This view of the Madras High Court has been considered and accepted by the Full Bench of this Court in Thankam's case (1976 KLT 526). This view of the Madras High Court has been considered and accepted by the Full Bench of this Court in Thankam's case (1976 KLT 526). In view of the Full Bench decision, we are not required to follow the decision of the Division Bench in Joseph's case (1961 KLT 215). For the limited question whether in the absence of an application under Order XXI Rule 90 C.P.C. or in the event of dismissal of such an application, title passes to the auction purchaser even in 'the absence of an express order of confirmation, decisions contrary to Jagannatha Rao's case (AIR 1936 PC 204), Ramaswami Iyer's case (AIR 1941 Mad. 277) and Thankam's case (1976 KLT 526) cannot be regarded as good law. As pointed out by the Supreme Court in Janak Raj's case (AIR 1967 SC 608) the court is bound to confirm the sale in circumstances contemplated under Order XXI Rule 92 C.P.C. Confirmation of sale is both the function and duty of the court and all that the purchaser need to do to ensure confirmation is to make the requisite deposit of the money as contemplated by law. Thereupon it is the duty of the court to confirm the sale. Where the court by inadvertance or otherwise fails to pass an order of confirmation, that cannot lead to deprivation of the right of the auction purchaser or cause prejudice to him. In such cases it can be deemed that the sale stands confirmed and where sale stands confirmed the sale shall be deemed to become absolute and title, by virtue of S.65 C.P.C. shall relate back to the date of sale. We would like to reiterate that the provisions of Order XXXIV Rule 5 C.P.C. constitute an exception to this rule due to the special position and privilege of mortgagor. 16. Applying the above principles to the facts of the case, it must be held that the court auction purchase made by the first defendant stood confirmed on the dismissal of the application to set aside the sale under O.XXI R.90 C.P.C. filed by Kesava Pillai and title passed to the first defendant. The sale by the legal representatives of Kesava Pillai in favour of the plaintiff was made subsequently and, therefore, plaintiff did not derive valid right. Therefore, plaintiff is not entitled to a preliminary decree for partition. The sale by the legal representatives of Kesava Pillai in favour of the plaintiff was made subsequently and, therefore, plaintiff did not derive valid right. Therefore, plaintiff is not entitled to a preliminary decree for partition. We, therefore, set aside the judgments and decrees of the trial court and the appellate court and dismiss the plaintiffs suit. Appeal is thus allowed, but in the circumstances, we direct both parties to bear their costs.