Manohar Lall, J.:— This appeal by two private purchasers from the judgment-debtor turns upon the proper construction to be placed upon the amendment to sub-rule (1) of rule 89 of the twenty-first Order of the Code of Civil Procedure as made by the Patna High Court.

The facts are these. On the 21st of October, 1943, the judgment-debtor executed a sale deed in favour of the appellant Deopati Kuer with regard to a property which would be styled as lot no. 1, but the deed was not registered. On the 24th of January, 1944, the properties of the judgment-debtor in lot no. 1 and lot no. 2 were sold in execution of a money decree and the respondent became the auction-purchaser. Lot no. 2 was sold to Babu Kamala Prasad Singh, the second appellant by the judgment-debtor after the sale of the 24th January, 1944. On the 25th January, Deopati Kuer filed a petition before the Court, which held the sale, that she should be allowed to make a deposit under Order XXI, rule 89 of the Code of Civil Procedure of a sum of Rs. 410 together with compensation of Rs. 20 so that the sale of lot no. 1 which had been sold in auction may be set aside. The Court directed the applicant to produce her kebala at once, but instead of producing it she only filed a registration ticket. On the 5th of February, 1944, the Court being informed that the kebala had not yet been registered directed the applicant to state if she had paid any money for the purchase, and if so to produce the money receipt. Upon this Deopati Kuer produced an unregistered bai-beyana deed together with a receipt and a petition that the original kebala may be sent for from the registry office and to allow her to deposit the decretal amount to the extent of the share of judgment-debtor no. 1 so that the sale of property no. 1 might be set aside. The Court after hearing the applicant came to the conclusion that the kebala had not been registered as the judgment-debtor was reported to be evading appearance before the sub-registrar, and, therefore, under section 54 of the Transfer of Property Act the mere execution of the kebala did not create any interest in or charge over the property covered thereby, but

“in this case, however, more things have happened besides the contract and even if the applicant cannot be considered to have got a charge over the property, he must be deemed to have acquired some interest in the property which will be affected if the sale of the property is confirmed and he is not allowed to deposit”

as prayed for before the expiration of 30 days from the date of the sale. As the auction-purchaser had not been heard, he, on the 10th of February, 1944, put in a petition objecting that Deopati Kuer had no locus standi to deposit the decretal money and compensation and so the order of the 8th of February, 1944, may be recalled. On the 12th of February, 1944, the order of the Court states that the entire decretal amount with compensation was sought to be deposited by two chalans and the auction-purchaser objected to the sale being set aside unless the kebala showing purchase by the applicant is produced, but as the kebala was filed in the registry office for compulsory registration by the judgment-debtor, the Court directed that the amount should be kept in deposit and if in course of one month from that date the applicant produced the kebala the sale would be set aside. On the other hand if the kebala had not been registered, the sale would be confirmed and the amount in deposit would be given back to the applicant. The amount having been deposited on the 24th of February, the decree-holder applied on the 20th March that he might be allowed to withdraw the amount, but the Court rightly directed that this should await the confirmation of the sale.

On the 4th of April, 1944, the Court observed that the application of Deopati Kuer had been pending for a long time for production of the kebala but she had taken no steps and was absent on repeated call. Her application was, therefore, rejected for default.

On the same date the Court considered the application of Babu Kamala Prasad Singh who had purchased lot no. 2 on the 18th of February, 1944. Kamala Prasad Singh had filed a petition in which he prayed that the sale deed, dated the 21st October, 1943, in favour of Deopati Kuer be called for from the registration office and further that the deposit made by Deopati Kuer might be treated as a deposit made by him and the sale should be set aside. The Court rejected the application of Kamala Prasad Singh on the ground that the sale took place in January, 1944, and thirty days after the sale had expired on the 22nd of February, 1944. The application on behalf of Kamala Prasad Singh to set aside the sale had been filed six weeks after the date fixed under the Limitation Act, and, therefore; the application was rejected as being time-barred. The result was that the Court confirmed the sale. The present appeal is against this order.

It is clear that Kamala Prasad Singh/the second appellant, has no grievance because his application to set aside the sale was filed more than thirty days after the date of the sale and, therefore, in his case the provisions of Order XXI, rule 89, have clearly not been complied with. His appeal must, therefore, be dismissed.

With regard to the appeal of Deopati Kuer, the matter requires further consideration.

It is convenient to set out the terms of the old section 310A, the relevant provisions in sub-clause (1) of rule 89 and the corresponding amended provisions by this Court.

Section 310A:

“Any person whose immovable property has been sold under this Chapter, may at any time within thirty days from the date of sale apply to have the sale set aside…………”

Rule 89(1):

“Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside……………………”

The amended rule:

“Where immovable property has been sold in execution of a decree, the judgment-debtor or any person deriving title through the judgment-debtor, or any person holding an interest in the property at the date of the application under this rule, may apply to have the sale set aside…………”

The case-law on the true construction and the ambit of the provisions in section 310A and rule 89(1) is voluminous, and the different High Courts are in sharp conflict with each other.

The Allahabad view is now represented by the case of Fatima-ul-Hasna(1) where it was held that “a judgment-debtor whose property has been attached and sold has until the confirmation of the sale a right to make an application under Order XXI, rule 89 of the Code of Civil Procedure to have the sale set aside, but he cannot, by selling such property to a third party, enable the purchaser so to apply”. The Bench of three Judges did not approve of the earlier decision in Ishar Das's case(2).

The Madras High Court has examined a large number of cases in the Full Bench case of Sundaram alias Mytheenbivi and has come to the conclusion that a judgment-debtor who, after the court sale, transfers his interest in the properties sold in execution of a decree retains sufficient interest within the meaning of rule 89 to allow him to apply under the rule and that the purchaser of such properties after the court sale is precluded from applying under the rule.

There is an interesting discussion in the case of Gantasola Jagannadhan by Sadasiva Aiyar J. and in A. Subbarayudu(3).

The Calcutta view may be illustrated by two cases.

In Gosto Behari Biswas(4) Sir Ashutosh Mookerjee held that a transferee of immovable property from the judgment-debtor after attachment of property in execution of a decree for money is competent to make an application for cancellation of an execution sale under rule 89.

In Saroda Kripa Lala(5) Sanderson, C.J pointed out that the decisions of the various High Courts went to show that there was a considerable difference of opinion as to the meaning of the terms of rule 89. After referring to the cases he came to the conclusion that in his view the purchaser of an immovable property from a judgment-debtor subsequent to the sale thereof in execution of a decree could not apply to have the execution sale set aside on deposit under rule 89 principally on the ground that the subsequent purchaser was excluded by the express terms of the rule and that the interest, if any, which he held in the property was not by virtue of a title acquired by him before the execution sale.

As to the Bombay view, the of cited case is Pandurang Laxman Uphade(6). In that case it was observed that the change brought about by rule 89 should be understood as embodying the desire of the legislature to make it clear that a purchaser acquiring title before the auction sale was competent to apply under this provision of the law, and it was held that “a judgment-debtor whose property has been sold at a Court sale in execution of the decree against him, has a right to apply to have the sale set aside as a person owning the property sold in execution of the decree within the meaning of rule 89 of Order XXI of the Civil Procedure Code of 1908, in spite of the fact that he has transferred his interest in the property after the Court sale”.

In Purshottam Gokul Gujar Madgavakar, J. after considering a number of cases came to the conclusion that “a money decree-holder who had attached the judgment-debtor's immovable property after it was ordered to be sold in execution of a mortgage decree cannot apply to set aside the sale held in execution of the mortgage decree as he is not a person holding an interest in the property by virtue of a title acquired before such sale within the meaning of Order XXI, rule 89 of the Civil Procedure Code”.

I now come to the Patna cases.

Nand Kishore Jha. In that case it was observed that a person who is out of possession of certain immovable property but is litigating to establish his title thereto is not entitled to make a deposit in court to set aside a sale of such property held in execution of a decree although the deposit was made when the Code of Civil Procedure of 1908 had come into operation, the learned Judges appear to have thought that the case was covered by section 310A of the old Code of Civil Procedure. This case which was cited on behalf of the respondents is of remote assistance.

The case of Musammat Dhanwanti Kuer is of material assistance. In that case Mullick J. pointed out the distinction between the wording of section 310A of the former Civil Procedure Code and the wording of rule 89 introduced by the Act of 1908. He held that the amending words “any person either owning such property or holding an interest therein by virtue of a title acquired before such sale” have, by letting in persons who are not parties to the execution proceedings, clearly widened the operation of the rule. The learned Judge then examined the cases of Ishan Das, Subarayudu and Pandurang and was of the opinion that the object and scope of the rule had been correctly stated in the judgment of the Bombay Court. He also thought that rule 89 should not be limited to a person so qualified to make an application at the time it is presented, because if this is done, the judgment-debtor, who is certainly one of the persons for whose benefit the rule was enacted, would become incompetent to make the application, and observed at page 344: “I think that the qualification must refer to the moment immediately before ownership passed. I agree with their Lordships of the Bombay Court in thinking that the law intended to assist the judgment-debtor if by making a private sale subsequent to the auction sale he could secure a better price for his property”. Jwala Prasad J. who gave a separate judgment, observed at page 345 that the question was not free from difficulty as it led to great divergence of opinion in the different Courts in India and felt very great difficulty in making up his mind. He concluded, however, in these words: “After a careful consideration of the object and scope of the rule, as well as upon a true construction of it, I have come to the conclusion that the judgment-debtor is not deprived of his right to have the sale set aside under the aforesaid rule, which he undoubtedly had under the old Code”. The words in the present Code: “Any person either owning such property or holding an interest therein by virtue of a title acquired before such sale” have been substituted for the words in the old Code: ‘Any person whose immovable property has been sold’.

“The property may be owned by the judgment-debtor, or it may be owned by some other person, and sold as the property of the judgment-debtor. It is with a view to allow such persons other than the judgment-debtor, as well as those who as co-sharers or as mortgagees, may have held some interest in the property by virtue of a title acquired before the sale, that the aforesaid amendment was made. The object of the amendment in the present rule is, therefore, not to curtail the rights of the judgment-debtor but to widen the scope of the rule by allowing persons other than the judgment-debtor to come in. The words in the rule, therefore, if not repugnant otherwise should be so construed as to give effect to the intention of the legislature. It is obvious that the intention of the legislature was not to take cognizance or notice of any event subsequent to the sale, for the rule expressly recognises only such interest in the property as may have been acquired before such date. Any act committed by the judgment-debtor affecting the property will not, therefore, be taken notice of by the court in an application under rule 89, and hence the judgment-debtor's disposing of his property will not deprive him of the right to come in under that rule………… It is obvious that any person owning immovable property at the time of its sale in execution of a decree may apply to have the sale set aside. The judgment-debtor, who has made the present application to set aside the sale under rule 89, will, therefore, clearly come under the said words. If it was intended that the owner of the property, such as the judgment-debtor owning the property at the date of the sale, should not be allowed to apply on account of his having parted with the property by sale or otherwise subsequent to the execution sale, it would have been clearly stated in the rule. In the absence of a clear restriction upon the right of a judgment-debtor which he had at the time of the sale it would be manifestly unjust to refuse the judgment-debtor the benefit of the rule. It would be beyond the scope of rule 89 to enquire into any transaction subsequent to the sale and to find out the motives for such a transaction”.

There is no case of this Court on the amended rule as it stands to-day. Fortunately the terms of the amended rule are so clear that it is no longer necessary to consider the sharp conflict of the views of the various High Courts which are found in the illustrative cases which I have noted above. By the amended rule the judgment-debtor or any person deriving title from the judgment-debtor can make an application under rule 89 (thus getting rid of the difficulties pointed out by the Madras and the Calcutta Courts) and also any person who holds an interest in the property at the date of the application. It will be noticed that the material point of time is the date of the application and not the date of the sale.

The real question for decision then in the present case is whether the appellant no. 1, Musammat Deopati Kuer, comes within the express terms of the amended rule. It is argued on behalf of the appellant that she is a person who derives title through the judgment-debtor as a result of the kebala executed in her favour on the 21st of October, 1943. It was argued, on the other hand, on behalf of the respondents that by the kebala no title vested in the appellant on the date of the execution sale, and therefore, on the date of the application it must be held that she had no title. To this the appellant's reply is that after the document has been registered the title relates back to the date of the execution and as this was before the auction sale it must be held that on the date of the application, the appellant deriving title from the judgment-debtor had a right to make the deposit.

Now it is conceded that on the date of the application under Order XXI, rule 89 the appellant had no title as it is clear that under section 54 of the Transfer of Property Act title only passed to the vendee on the registration of the document. Moreover in this case the vendor refused to register the document and, therefore, proceedings had to be taken in the registration department for a compulsory registration. In these circumstances the situation is somewhat akin to Nandkishore Jha's case, noticed above: It is also to be observed that up to the date when the learned Subordinate Judge dismissed the application of the appellant, namely on the 19th of April, 1944, the kebala in favour of the appellant had not been registered—it was actually registered on the 27th of October, 1944, and was produced in this Court only in February, 1946, after repeated adjournments had been given. How could the Executing Court on the 4th of April, 1944, assume or recognise that any title had passed to the appellant? The registration might have been refused. But it is argued that we should take notice of the events that have happened since the date of the order under appeal and should give relief to the appellant. As a general rule, a Court of Appeal in considering the correctness of the judgment of the Court below, will confine itself to the state of the case at the time such judgment was rendered, and will not take notice of any facts which may have arisen subsequently. But the Court will in exceptional cases depart from this rule specially where, by so doing, it can shorten litigation and best attain the ends of justice by preserving the rights of the parties [see the discussion by Mookerjee, J. in Ram Ratdn Sahu and the illustrations given by him at pages 78 and 79].

To the same effect is the case of Purkhit Panda. Several cases on this point are noticed in a recent decision of the Federal Court in the case of the United Provinces v. Atiqa Begum.

But the present case does not fall within the exceptions of this well-recognised rule as it is not a case where the litigation will be shortened by taking notice of events subsequent to the judgment of the trial court, but this is a case where, as I pointed out above, the Subordinate Judge on the date he passed the order under appeal could not have received the deposit as no interest had vested in the appellant on that date. It is only at the appellate stage that the appellant is able to show that interest has passed to him. The situation may be considered from the analogy of what happens to the vesting of a sale on confirmation as provided by the Code of Civil Procedure.

In the case of Raja Raghunandan Prasad Singh v. Commissioner of Income-tax one of the points for determination was whether the profits must be deemed to have arisen to the assessee on the confirmation of the sale or on the date of the sale. Lord Macmillan, who delivered the judgment of their Lordships observed as follows at page 316: “The decree is only a step towards realization, and the date of the decree is therefore plainly not the date of realisation. Nor on the date of the sale does the purchaser obtain an indefeasible right, for under Order XXI, rules 89, 90 and 91 the sale may be set aside on various grounds. It is only where no application is made under these rules or such application is made and disallowed that the Court under Order XXI, rule 92 makes an order confirming the sale, whereupon ‘the sale shall become absolute’. It is then that the process of realisation is completed and any profit or income is realised by the decree-holder. This is so whether the property is purchased by the decree-holder himself or by a third party, for the right to set off conferred on the purchasing decree-holders must also be dependent on the sale being rendered absolute by confirmation. No doubt section 65 of the Code provides that ‘where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute’. But this provision does not come into operation unless and until the sale has become absolute. The actual date of realisation is not affected by this retrospective vesting of the property”. In my opinion the situation is exactly the same where the document has been registered later on and its registration effects a retrospective vesting of the property in the purchaser from the date of the execution. Where the Court has to make a decision after determining the rights of the parties on a certain date, it can only give relief if the person has the requisite qualification on that date. Here, as I have pointed out several times above, on the date when the deposit was sought to be made under rule 89, the court was bound to decide that the applicant has no interest by virtue of a mere execution of a sale deed in his favour where the statute requires a registered sale, deed to pass title from the vendor. An application could have been made in the name of or by the judgment-debtor. In my opinion, in the present situation, we are bound to refuse to take into consideration the fact that at a later date the kebala has been registered.

In Gopal Bux Rai Harries, C.J and Dhavle, J. pointed out that “the words of section 65 of the Code of Civil Procedure make it clear that the property does not actually vest in the purchaser at the time of the sale, but once the sale is confirmed it is deemed to have vested in him as and on from that date. Confirmation of a sale is an integral part of the transaction of sale and without confirmation the purchaser acquires no title. Consequently an order prohibiting sale also prohibits confirmation of the sale which had already taken place and which had not been confirmed before the prohibitory order was passed”. To adopt this language, here also the registration of a sale-deed is an integral part of the transaction of the sale and without its registration, - the purchaser acquires no title. It follows that on the date when the application was made under rule 89, the appellant had no title to maintain it.

The appellant cannot expect any sympathy from this Court when it will be recalled that on the 4th of April; 1944, she was not present and no pairvi was made on her behalf. The learned Subordinate Judge recorded the order

“She has not taken any step and is absent on repeated call. Her application is, therefore, rejected for default”.

Having considered the matter from every point of view, I am unable to give any relief to the appellant. Her application was rightly dismissed by the learned Subordinate Judge. The appellant has not argued that her application should not have been dismissed for default as she had sufficient cause for not being present on that date.

I will dismiss this appeal, but in the circumstances I will direct that each party will bear his own costs in this Court.

Imam, J.:— I entirely agree.

Appeal dismissed.

S.H