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2009 DIGILAW 251 (KER)

Krishnan v. Joseph John

2009-03-12

K.T.SANKARAN

body2009
Judgment: The order dismissing the application filed by the petitioner under R.90 of O.XXI of the Code of Civil Procedure is under challenge in this Writ Petition. The Registry noted a defect that the order impugned is appealable and therefore Writ Petition is not maintainable. 2. The contention taken by the petitioner is that though the application under R.90 of O. XXI was dismissed, there was no order confirming the sale and, therefore, it does not fall within the purview of R.92 of O. XXI of the Code of Civil Procedure. O.XLIII R.1(j) says that an appeal shall lie from an order under R.72 or R.92 of O.XXI setting aside or refusing to set aside a sale. O.XXI R.90 of the Code of Civil Procedure provides for an application for setting aside the sale on the ground of irregularity or fraud. Sub-r.(1) of R92 of O.XXI provides that where no application is made under R.89, R.90 or R.91, or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. R.90 as such does not say that an application is to be either allowed or dismissed. That is stated only in R.92. Sub-r. (2) of R.92 reads thus: "92. Sale when to become absolute or be set aside:- (1) …………….. (2) Where such application is made and allowed, and where, in the case of an application under R.89, the deposit required by that rule is made within sixty days from the date of sale, or in cases where the amount deposited under R.89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale; Provided that no order shall be made unless notice of the application has been given to all persons affected thereby." That is the reason why in O.XLIII R. 1(j) instead of R.90, mention of R.92 is made. That does not mean that an appeal under O.XLIII R.1(j) would lie only when the sale is confirmed. That does not mean that an appeal under O.XLIII R.1(j) would lie only when the sale is confirmed. If the contention raised by the petitioner is accepted, it will result in anomalous situation; in a case where sale is confirmed, the party whose application was dismissed under R.90 of O.XXI would be able to file an appeal and if the sale is not confirmed, he would have no right to file appeal till the sale is confirmed. If the contention of the petitioner is accepted, a party who is aggrieved by the order dismissing his application under R.90 of O.XXI would have to wait till confirmation of sale is made. That is not what is intended by O.XLIII R.1(j). Confirmation of sale may be delayed due to several reasons. The proviso to sub-r.(1) of R.92 states that where any property is sold in execution of a decree pending disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection. The right of a person to file an appeal against the dismissal of his application under R.90 cannot be curtailed or delayed on account of the non-confirmation of the sale. Whether confirmation of the sale is made or not, an appeal lies against an order dismissing the application under R.90 of O.XXI. An appeal is provided against the order setting aside or refusing to set aside a sale and not against the order confirming the sale. 3. The view taken by me is fortified by the following decisions. In Mohammad Ismail Rowtharv. Velayudhan (1964 KLT 720), a question arose whether an appeal filed before the lower appellate court against the order confirming sale after dismissing an application under O.XXI R.90 of the Code of Civil Procedure was incompetent. In that case, application under O.XXI R.90 was dismissed on 37.1961 and the sale was confirmed on 30.9.1961. The judgment debtor filed an appeal before the lower appellate court challenging the order dated 30.9.1961. The appeal was allowed. In the Second Appeal, a contention was raised that no appeal did lay against the order confirming the sale and an appeal under O.XLIII R.1(j) was maintainable only against the order dismissing the application underR.90. The judgment debtor filed an appeal before the lower appellate court challenging the order dated 30.9.1961. The appeal was allowed. In the Second Appeal, a contention was raised that no appeal did lay against the order confirming the sale and an appeal under O.XLIII R.1(j) was maintainable only against the order dismissing the application underR.90. That contention was accepted and it was held that under O.XLIII R.1(j), an appeal is provided against an order dismissing a petition under O.XXI R.90, but not against an order confirming the sale. Similar view taken by the Calcutta High Court in Guru Charan v. Mahendra Chandra (43 C.W.N. 352) was followed by the Division Bench. 4. In L. Balu v. Periasami and Others (AIR 1988 Mad. 114), the scope and ambit of R.1(j) of O.XLIII of the Code of Civil Procedure was considered and it was held as follows: "A reading of the above sub-rule clearly indicates that an appeal would lie only against two categories of orders, viz., one setting aside the sale and the other refusing to set aside the sale. Either of the above two contingencies would arise only if an application is made to set aside the sale either under R.72 or under the rules covered by R.92 of O.21, viz., Rr.89, 90 and 91 . When the sale is sought to be confirmed on the ground that no application to set aside the sale has been made, the question of the Court setting aside the sale or refusing to set aside the sale does not arise. When an order of confirmation is made on the ground that no application to set aside the sale has been made, it cannot be stated that such an order would come within the purview of O.43, R.1(j) ….. When, therefore, a sale is confirmed without any such contingency having arisen, viz., when no application for setting aside the sale has ever been made, it should be taken that such an order of confirmation will not come under O.43, R.1(j) and it is not, therefore, an appealable order. The remedy open to the aggrieved party would be by a revision invoking the inherent powers of this Court.” 5. For the aforesaid reasons, I hold that the order impugned in the Writ Petition is appealable under R.1(j) of O.XXI of the Code of Civil Procedure and therefore the Writ Petition is not maintainable. The remedy open to the aggrieved party would be by a revision invoking the inherent powers of this Court.” 5. For the aforesaid reasons, I hold that the order impugned in the Writ Petition is appealable under R.1(j) of O.XXI of the Code of Civil Procedure and therefore the Writ Petition is not maintainable. The view taken by the Registry is correct.