The respondent in this application is the mortgagee and the petitioner the mortgagor. The mortgagee brought a suit for sale and obtained a preliminary decree and then a final decree. A sale of the property was held and 32 days later the petitioner put in an application purporting to be under O. 21, R. 89, to set aside the sale, depositing the whole mortgage amount plus five per cent for the auction purchaser and costs. The Court held that under Art. 166 (although the provision of the Limitation Act is not mentioned) the application was not in time and dismissed it. The petitioner then filed a review petition stating that his application was not one under O. 21, R. 89, but one under O. 34, R. 5. No serious objection to the hearing of this review application was made on the ground that a review did not lie and after full discussion of the applicability of O. 34, R. 5, O. 21, Rr. 89 to 92, and Art. 166 of the Limitation Act, the Court passed an order dismissing the review petition. Against the order on the review petition, this Civil Revision Petition has been filed.
It is argued in support of the lower Court's order that a review petition before a Judge other than the one who passed the first order was not maintainable, but I do not think that is now of any great importance because no serious objection was raised on this ground before the lower Court and the Court dismissed the application not on that technical ground but on the ground that under O. 21, R. 92 and Art. 166 of the Limitation Act the original application was properly dismissed. The petitioner could no doubt have filed a Civil Revision Petition against the original order, with another petition to excuse delay and under the circumstances, in view of the fact that he had been bona fide engaged in the prosecution of the review petition, the delay would most probably have been excused. He would of course have adopted that procedure if the learned District Munsif had dismissed the review application on the ground that a review did not lie. In view of the fact that the District Munsif went into the point fully in the second application and there was no consideration of the applicability of O. 34, R. 5 in the first application, a Civil Revision Petition was not unnaturally preferred against the second petition. The mere fact that the petitioner preferred to file a Civil Revision Petition against the order passed on the review application and not on the first order ought not to preclude this Court from passing an order which it deems to be in the interests of justice.
On the question as to how far O. 34, R. 5, modifies the procedure to be adopted in application to set aside sales, I think it must first be stated that Art. 166, a general provision applying to many applications under the Code and not only to applications under O. 21, Rr. 89 to 91, cannot override the special provisions of any particular section or rule of the Civil Procedure Code to the contrary. If therefore O. 34, R. 5, gives a time other than that provided by Art. 166, the special provision must prevail. O. 34, R. 5 states that where at any time before the confirmation of the sale made in pursuance of a final decree certain moneys are deposited in Court the plaintiff shall be ordered to hand over the document referred to in the decree and to do the other things which are necessary to support the defendant's title to the hypothecated property. The learned District Munsif says that under O. 21, R. 92, the Court in circumstances like the present as well as in general where the application has not been put in under O. 21, Rr. 89 to 91, is bound to order confirmation of the sale. That no doubt is a correct interpretation of O. 21, R. 92; but the fact remains that until the order is passed no confirmation takes place and, as will be seen from the wording of O. 21, R. 92 and S. 65 Civil Procedure Code until confirmation takes place the sale does not become absolute, which means, as various decisions have laid down, that the property remains with the judgment-debtor. It is argued that where O. 34 R. 5 speaks of the confirmation of sale, it must mean the date on which the sale can be confirmed. That is not what O. 34, R. 5, says. I see no reason why the section should not be given its plain interpretation. The District Munsif seems to be of opinion that as the Court is bound to confirm the sale after 30 days, the sale automatically becomes confirmed after 30 days. That argument might be valid if the wording of O. 21, R. 92, did not make it clear that automatic confirmation did not take place. O. 21, R. 92 contemplates the passing of an order of confirmation and it is the passing of this order which makes the same absolute; so that it is not the lapse of 30 days that confirms the sale but the passing of an order which cannot be passed within 30 days. I am therefore of opinion that the District Munsif was wrong in holding that this application was out of time. It was made before the sale had been confirmed and therefore under O. 34, R. 5, the Court was bound to order the plaintiff to receive the sum of money tendered and to give up the documents contemplated by O. 34, R. 5, which support his title.
As all these proceedings have been instituted in a large measure on account of the negligence of the petitioner, I think it would be unfair to mulct the respondent with all the costs. The petitioner will get his costs in this Court but in the other proceedings each party will bear his own costs.
N.R.RPetition allowed.