Citation Codes

Equivalent Citations

citation codes

Case Number

L.P.A Nos. 129 and 139 of 1959

Attorney(S)

For the Appellant: ADAVI RAMA RAO, Advocate.

Judges

Chandra Reddy, C.J
Anantanarayana Ayyar, J.

Acts

Indian Limitation Act, 1908, or in the Code of Civil Procedure, 1908,
Madras Agriculturists Relief (Amendment) Act (XXIII of 1948),
Madras Agriculturists Relief (Amendment) Act, 1948,
ORDER 21 RULE 90 CIVIL PROCEDURE CODE
21, rule 90, Civil Procedure Code,
rule 89 or rule 90 or rule 91
section 19 of Act IV of 1938
Order 21, rules 89, 90
Order 21, rule 90.19.
Order 21, rule 90,
Order 21, rule 92,

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Smart Summary

Structured Summary of the Opinion — Chandra Reddy, C.J.

Factual and Procedural Background

A suit (O.S. No. 8 of 1937) was instituted in the Subordinate Court at Eluru on a mortgage bond for Rs. 7,230. The suit was decreed in January 1937 (interim) and a final decree was made on 18th August 1938. An appeal against the preliminary decree (A.S. No. 316 of 1937) was dismissed by the High Court on 9th April 1940.

Six acres 81 cents of the mortgaged property were sold in execution for Rs. 7,200 on 8th December 1947. The judgment-debtors applied under Order 21, rule 90, Civil Procedure Code to set aside the sale; the Subordinate Judge required them to deposit the sale proceeds into Court. Because they failed to comply, the unregistered petition was dismissed on 16th February 1948 and the sale was confirmed two days later.

The judgment-debtors filed a Civil Miscellaneous Appeal (C.M.A. No. 126 of 1948) in the High Court of Madras against that order; the order confirming the sale itself was not separately appealed. The Madras Agriculturists Relief (Amendment) Act (XXIII of 1948), introducing sections 23-A and 24-A, came into force on 25th January 1949. Taking advantage of the new statutory provisions, the judgment-debtors filed two applications in the High Court on 4th April 1949 (C.M.Ps Nos. 5528 and 5529 of 1949) seeking (a) to set aside the sale and (b) to scale down the decree under section 19(2) of the Act.

About four years later the High Court allowed the Civil Miscellaneous Appeal and remanded the application under Order 21, rule 90 to the trial Court for disposal on merits; the two C.M.Ps were sent down and renumbered as E.A. No. 183 of 1953 and E.A. No. 700 of 1953. E.A. No. 183 of 1953 was allowed and, on 16th December 1955, the sale was set aside under section 23-A of the Act. The trial Court also scaled down the decree in accordance with sections 19 and 24-A of the Act.

The decree-holders appealed against (i) the order setting aside the sale and (ii) the order scaling down the debt. These appeals were presented as Letters Patent Appeals before the court (L.P.A. Nos. 129 and 139 of 1959).

Legal Issues Presented

Whether a judgment-debtor could avail himself of section 23-A of the Madras Agriculturists Relief (Amendment) Act, 1948 to set aside a sale where an application under Order 21, rule 90 was pending or had been restored by the High Court (i.e., whether confirmation of sale by the trial court became final notwithstanding the pendency or restoration of such an application).
Whether a petition for relief under section 24-A (or section 19(2) as applied) was required to have been presented initially in the Subordinate Judge's Court (trial court) in order to entitle the judgment-debtor to relief, or whether presentation in the High Court (which had seisin and remanded the matter) was sufficient.

Arguments of the Parties

Appellant's Arguments (judgment-debtors/respondents in the appeals below)

It was urged that the learned Judge in the High Court had misapprehended the true scope of the High Court's order restoring the application under Order 21, rule 90; accordingly, section 23-A should apply.
Implicitly, the judgment-debtors argued that because the application under Order 21, rule 90 was pending and then restored to file, the sale could not be regarded as finally confirmed, and therefore an application under section 23-A was maintainable.
Regarding scaling down the decree, it was contended that presentation of the petition in the High Court was sufficient because the High Court had seisin of the matter and, on remand, it must be deemed to have been filed in the Subordinate Judge's Court.

Respondent's Arguments (decree-holders/respondents to the appeals)

The decree-holders contended that section 23-A was inapplicable because confirmation of the sale had taken place well beyond the 90-day limit prescribed by section 23-A.
They further contended that restoration of the application under Order 21, rule 90 by the High Court did not operate to vacate or render ineffective the earlier order confirming the sale.
With respect to scaling down under section 24-A, they argued that because the petition under section 24-A was not presented in the Subordinate Judge's Court, the respondent was not entitled to that relief.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Varadarajan v. Reddi, 1953 1 M.L.J. 148 (Madras High Court)	Holds that orders under Order 21, rule 92 are contingent/dependent upon outcomes of applications under Order 21, rules 89–91; restoring an application under Order 21, rule 90 operates to vacate or render ineffective an earlier order confirming a sale under Order 21, rule 92.	The court applied this doctrine directly, stating that the instant case falls within the scope of Varadarajan and relying on it to hold that restoration of the application prevented the sale from becoming absolute.
Shama Purshad Roy Chowdery v. Jurro Purshad Roy Chowdery (Privy Council)	Establishes that subordinate or dependent orders remain in force only while the order/decree on which they depend is not reversed or superseded; if the primary judgment or decree is reversed, the dependent order becomes ineffective.	The court cited the Privy Council's remarks to support the proposition that if the appellate court sets aside the order that confirmed the sale, then there would be no sale; used to reinforce that restoration of the application under Order 21, rule 90 renders confirmation ineffective.
Chandramam Shaha v. Anarjan Bibi, 1934-67 M.L.J. 79 = L.R. 61 I.A. 248 = I.L.R. 61 Cal 945 (Privy Council)	Holds similarly that where an application under Order 21, rule 90 is dismissed and sale confirmed, but an appeal is pending, the date on which the sale becomes absolute is the date of the appellate order (i.e., appellate determination), not the date of the trial court's order.	The court relied on this authority to conclude that during the pendency of the appeal or while the application under Order 21, rule 90 remained effectively pending, no finality attached to the sale despite trial court confirmation.
Chellamma v. Ramakrishna Rao (Madras High Court)	Holds that an application under the relevant statutory provision (section 19 of Act IV of 1938 in that case) may be entertained while an appeal against confirmation of sale is pending; the validity of the sale is in question until finally decided by the High Court.	The court used this Madras High Court decision to reinforce that an application to reduce or set aside sale or scale down the decree can be entertained while the appeal under Order 21, rule 90 is pending, because the validity of the sale remains in question.

Court's Reasoning and Analysis

The court commenced by examining the governing provisions: Order 21, rule 92 of the Civil Procedure Code and section 23-A of the Madras Agriculturists Relief (Amendment) Act, 1948.

The court interpreted Order 21, rule 92 to mean that a sale cannot become absolute while an application under Order 21, rule 89, 90 or 91 is pending: only where no such application is made within the statutory period or such application is made and disallowed does the Court have power to confirm the sale. The effect of an application under rule 90 is thus contingent on the outcome of that application; confirmation by the trial court is dependent upon the absence or failure of the rule 90 application.

From this statutory framework the court deduced that if an application under Order 21, rule 90 is pending, any confirmation made in the meantime is ineffective if the application is later accepted. It is not necessary, in the court's view, that there be a separate order explicitly avoiding the confirmation: setting aside the sale as a result of a successful application renders the prior confirmation ineffective as a matter of consequence.

The court extended this reasoning to the situation where the appellate court reverses the trial court's dismissal of a rule 90 application and restores it to file: such restoration operates automatically to vacate or render ineffective any earlier confirmation of the sale (i.e., the confirmation was contingent and is thereby put in abeyance).

The court supported its analysis with authorities (Varadarajan v. Reddi; Privy Council decisions including Shama Purshad Roy Chowdery and Chandramam Shaha v. Anarjan Bibi) demonstrating that subordinate or dependent orders (including confirmations under Order 21, rule 92) cannot remain effective once the primary order on which they depended is reversed or set aside. It also relied on the Madras High Court's decision in Chellamma v. Ramakrishna Rao to show that applications to set aside sales or for statutory relief may be entertained while an appeal under Order 21, rule 90 is pending because the validity of the sale remains an open question.

Applying these principles to the facts, the court concluded that when the petitions under section 23-A and section 24-A (or section 19(2) as applied) were on file and the High Court had the matter seised (including restoring the rule 90 application), the sale could not be treated as finally confirmed for the purposes of section 23-A. Consequently, the judgment-debtors were entitled to be heard under section 23-A and the trial Court's setting aside of the sale was correct.

On the issue of scaling down the decree under section 24-A, the court reasoned that presentation in the High Court (which had seisin) and the subsequent remand to the trial Court meant that the petition must be deemed to have been filed in the Subordinate Judge's Court; further, the High Court's direction to the trial Court to consider and dispose of the petitions on merits had become final and could not be impeached at this stage. Therefore the scaling down relief was properly granted.

Holding and Implications

Core Rulings

L.P.A. No. 129 of 1959 — Allowed; the trial Court's order setting aside the sale under section 23-A is restored (with costs awarded).
L.P.A. No. 139 of 1959 — Dismissed; the order scaling down the decree under the relevant provisions (sections 19 and 24-A as applied) is maintained (no order as to costs).

Consequences for the Parties

The sale of the mortgaged property (sold on 8th December 1947) was set aside under section 23-A as the judgment-debtors were entitled to the benefit of that statutory provision while the application under Order 21, rule 90 was effectively pending/restored.
The decree was scaled down by the Subordinate Judge in accordance with the statutory provisions (sections 19 and 24-A), and that relief was upheld by the court; L.P.A. No. 139 was therefore dismissed.

The opinion reaffirms and applies established authority that confirmations of sale under Order 21, rule 92 are contingent on the absence or failure of applications under Order 21, rules 89–91, and that restoration or success of such an application can render an earlier confirmation ineffective.

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Satyanarayana v. Ramamurthi .

The Judgment of the Court was delivered by

Chandra Reddy, C.J

2. These two appeals are connected and the parties are the same. They ??? of two petitions filed by the judgment-debtors under sections 23-A and ??? the Madras Agriculturists Relief Act (hereinafter referred to as the Act), ??? No. 183 of 1953 and E.A No. 700 of 1953.

3. A suit O.S No. 8 of 1937 was brought on the file of the Subordinate ??? Court Eluru, on a mortgage bond for Rs. 7,230. The suit was decreed on ??? January, 1937 and final decree therein was made on 18th August, 1938. ??? the preliminary decree, an appeal was taken to the High Court in A.S No. 316 of 1937, which was dismissed on 9th April, 1940. Subsequently, 6 acres 81 cents of the mortgage security were brought to sale and sold for Rs. 7,200 on 8th December, 1947. Within the prescribed time, the judgment-debtors filed an application to set aside the sale under Order 21, rule 90, Civil Procedure Code. The Subordinate Judge required the judgment-debtors to deposit into Court the amount realised by the sale. Since they failed to comply with the direction, the unregistered petition was dismissed on 16th February, 1948 and the sale was confirmed two days thereafter.

4. The judgment-debtors preferred C.M.A No. 126 of 1948 in the High Court of Madras against this order. The order confirming the sale was not appealed against. During the pendency of the Civil Miscellaneous Appeal, the Madras Agriculturists Relief (Amendment) Act (XXIII of 1948), which inter alia introduced sections 23-A and 24-A came into operation on 25th January, 1949. Taking advantage of this, the judgment-debtors filed two applications on 4th April, 1949, in the High Court to set aside the sale and to scale down the decree debt under section 19(2) of the Act, the two applications being C.M.Ps No. 5528 and 5529 of 1949. Four years thereafter, the High Court allowed the C.M.A and remanded the application filed under Order 21, rule 90. Along with this application, the two C.M.Ps Nos. 5528 and 5529 of 1949 were sent down to the trial Court for disposal on merits. Accordingly, the two C.M.Ps were taken on file and renumbered as E.A No. 183 of 1953 and E.A No. 700 of 1953. E.A No. 183 of 1953- was allowed and the sale set aside under section 23-A of the Act on 16th December, 1955. Since this relief was obtained, the counsel for the judgment-debtors endorsed that he was not pressing the application with the result that it was dismissed. The Subordinate Judge also scaled down the decree in accordance with the provisions of sections 19 and 24-A of the Act.

5. The aggrieved decree-holders brought the appeals against that judgment, one ??? the decision setting aside the sale and the other against the scaling ??? of the debt. Sanjeeva Raw Nayudu, J., accepted the contention of the ??? that section 23-A was inapplicable to the case as the confirmation had ??? place well beyond 90 days, the limit prescribed in section 23-A. He thought ??? restoration by the High Court of the application under Order 21, rule 90, ??? operate to vacate or render ineffective the earlier order confirming the sale ??? 21, rule 92, Civil Procedure Code. In this view of the matter, he ??? the appeal against the order setting aside the sale, but dismissed the appeal ??? order scaling down the decree rejecting the contention that the ??? in the High Court for this relief was not in accordance with the terms ??? 24-A of the Act. The aggrieved parties have preferred these two ??? Appeals.

6. ??? P.A No. 129 of 1959, the conclusion of the learned Judge as regards ??? of section 23-A is assailed. It is urged that the learned Judge ??? the true scope of the order of the High Court restoring the ??? under Order 21, rule 90, to file.

7. ??? an appraisal of the points arising in this appeal, it is necessary to read ??? 21, rule 92, and section 23-A of the Act.

8. Order 21, rule 92, runs as follows:—

“Where no application is made under rule 89 or rule 90 or rule 91 or ??? such application is made and disallowed, the Court shall make an order ??? the sale, and thereupon, the sale shall become absolute.

Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, and in case where the amount deposited has been diminished owing to any cause not within the control of the depositor 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.

No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.”

9. Section 23-A enacts:—

“Where in execution of any decree, any immovable property, in which any person entitled to the benefits of the Madras Agriculturists Relief (Amendment) Act, 1948, had an interest, has been sold or foreclosed on or after the 30th September, 1947, and the sale has not been confirmed before the commencement of the said Act, or ninety days have not elapsed from the confirmation of the sale or from the foreclosure, at such commencement, then, notwithstanding anything contained in the Indian Limitation Act, 1908, or in the Code of Civil Procedure, 1908, and notwithstanding that the sale has been confirmed, any judgment-debtor claiming to be entitled to the benefits of the said Act, may apply to the Court within ninety days of stich commencement or of the confirmation of the sale, whichever is later, the set aside the sale or foreclosure of the property and the Court shall, if satisfied that the applicant is a person entitled to the benefits of the said Act, order the sale or foreclosure to be set aside, and thereupon the sale or foreclosure shall be deemed not to have taken place at all:

Provided that no such order shall be made without notice to the decree-holder, the auction-purchaser and other persons interested in such sale or foreclosure and without affording them an opportunity to be heard in the matter.”

10. It is plain from Order 21, rule 92, that during the pendency of an ??? under Order 21, rule 90, the sale could not be made absolute. The ??? is dependent on the result of applications under any of the rules ??? by rule 92 provided such application was presented as required by the ??? is only where no application under Order 21, rule 90, or other rules ??? therein is made within the statutory period or where such application ??? and disallowed that the Court has power to confirm the sale. The ??? an application for setting aside a sale is a bar to make the sale ??? the application is eventually accepted, any confirmation that might ??? made in the meantime remains ineffective. The confirmation would ??? stand vacated, there being no sale. It is not necessary that there should ??? order avoiding the confirmation. That is the consequence of setting as ??? sale.

11. The situation is the same even when the appellate Court reverses the decision of the trial Court rejecting the application and restores it to file.

12. There is abundant authority for this position. In Varadarajan v. ??? Reddi . 1953 1 M.L.J 148., a Bench of the Madras High Court has ruled that orders under Order ??? rule 92, Civil Procedure Code, are in the nature of contingent or dependent ??? and depend upon orders that may be passed on an application under Order 21, rules 89, 90 or 91 and that the effect of restoring an application under Order 21, rule 90, automatically operates to vacate or render ineffective an earlier order confirming a sale under Order 21, rule 92. Incontrovertibly, the instant case falls within the scope of the doctrine of that case.

13. Sanjeeva Row Nayudu, J., dissented from that ruling observing that he was unable to subscribe to the view expressed therein, which he was not entitled to do. In our judgment, that ruling embodies sound law, supported not only by the language of Order 21, rule 92, but also by judicial opinion. It is unnecessary to make a copious citation in this regard. Suffice it to refer to the judgment of the Privy Council in Shama Purshad Roy Chowdery v. Jurro Purshad Roy Chowdery. It was held that certain orders and decrees, which were subordinate and dependant upon earlier orders and decrees could only remain in force so long as the order or decree on which they were dependent were not reversed or superseded. If the judgment or decree that was responsible for that order was reversed, it became ineffective. The following remarks of their Lordships are instructive:

“Again, take a case in which the Subordinate Judge disallowed the application to set aside the sale; there would then be confirmation of the sale by the Subordinate Judge and the sale would become absolute as far as his Court was concerned. If the High Court allowed an appeal, and set aside the sale, there would then be no sale, and of course, no confirmation and no absolute sale.”

14. We may here cite also Chandramam Shaha v. Anarjan Bibi . 1934-67 M.L.J 79 = L.R 61 I.A 248 = I.L.R 61 Cal 945 P.C., which contains a like proposition. In that case, the trial Court dismissed an application under Order 21, rule 90, Civil Procedure Code and confirmed the sale. An appeal against that order was dismissed by the High Court. It was held by the Privy ??? that the date on which the sale became absolute was the date of the ??? order and not the date of the trial Court's order.

15. ??? thus clear that during the pendency of the appeal, no finality attaches to ??? notwithstanding the confirmation by the trial Court. By reason of the ??? of the application under Order 21, rule 90, the position is that ??? must be deemed to be pending and not disposed off. The sale was ??? to attack.

16. ??? contended on behalf of the respondent that the appellant is not entitled ??? because the application under section 23-A was filed after the ??? of the sale and before the High Court had actually reversed the order of ??? Judge under Order 21, rule 90, Civil Procedure Code, and ??? application to file.

17. ??? foregoing discussion contains an answer to the submission, namely, the ??? the sale still being in question, it could not be postulated that the sale ??? absolute. There was no final adjudication on the legality of the sale ??? as that situation continues, the judgment-debtor is entitled to the ??? 23-A. When petitions were filed, the High Court was seized of the ??? therefore, it could entertain an application under section 23-A of the ??? Agriculturists Relief Act.

18. ??? Further, it is not disputed that if this application was filed after the disposal M.A No. 126 of 1948, there could be no opposition to it. The fact that it ??? sometime before would not make any material difference and would not debar the judgment-debtor from taking advantage of that section. The application was on file all the time and as such it was taken notice of after the restoration of the application under Order 21, rule 90.

19. Our view is strengthened by the ruling of the Madras High Court in Chellamma v. Ramakrishna Rao. There, the application under Order 21 rule 90, Civil Procedure Code, was dismissed and the sale was confirmed. An application under section 19 of Act IV of 1938 was also dismissed before the appeal against the order confirming the sale was preferred. It was urged on behalf of the decree-holders that the subsequent filing of an appeal against the order of confirmation would notijustify the disposal of the simultaneous appeal against the order under section 19 on grounds other than those which existed when the latter application was filed. This contention was not accepted in the view that the application, under section 19 would lie during the pendency of the appeal against the order under Order, 21, rule 90, Civil Procedure Code, though it was dismissed before the appeal was filed, since the High Court had seized the matter. It was-observed by the learned Judges that the validity of the sale was still in question and until that question was finally decided by the High Court, the sale could not be said to have become absolute. In such circumstances the appeal must be regarded as the continuation of the proceedings in the lower Court to set aside the sale.

20. Lastly, there is the circumstance that the High Court, while remanding the matter, directed the trial Court to consider these applications (C.M.Ps Nos. 5528 and 5529 of 1949). That order had become final and it cannot be impeached at this stage.

21. For these reasons, we hold that the appellant was entitled to the benefit of section 23-A and the trial Court has rightly afforded him relief by setting aside the sale.

22. In the result, the Letters Patent Appeal is allowed with costs:

23. L.P.A No. 139 of 1959.— This appeal relates to the scaling down of the ??? The only ground urged in support of this appeal is since the petition ??? section 24-A was not presented in the Court of the Subordinate Judge, Eluru, ??? respondent was not entitled to the relief. We do not think that this contend ??? substantial, in view of the fact that it was presented in the High Court ??? seizin of the matter. In any event, it must be deemed to have been filed ??? Subordinate Judge's Court when the matter was sent back by the High ??? The direction of the High Court could be equated to its being returned ??? judgment-debtor to be filed in the Subordinate Judge's Court and lie ??? it in that Court. Again, as in the case of the petition under section the High Court directed that this also should be disposed off by the trial ??? merits, the appellant cannot go behind that order. We cannot, therefor ??? effect to the submission made on behalf of the appellant.

24. In the result, the appeal is dismissed. There will be no order as to cost ???

25. M.S.K

L.P.A No. 129 of 1959 ??? Trial Court's order restored; ??? No. 139 of 1959 dismissed.

21, rule 90, Civil Procedure Code,

Satyanarayana v. Ramamurthi .

Structured Summary of the Opinion — Chandra Reddy, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (judgment-debtors/respondents in the appeals below)

Respondent's Arguments (decree-holders/respondents to the appeals)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Satyanarayana v. Ramamurthi .

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