Birdichand And Others Decree-Holders v. Ganpatsao Narayansao Kalar Judgment-Debtor .

1. This is an appeal from an order dated 23rd April 1936 made in execution of a decree passed in a mortgage suit. The order was made on an application which sought to set aside a sale. The Court has set aside the sale for the reason that the sale was held in execution of a final decree passed by the trial Court following upon a preliminary decree which final decree was passed during the pendency of an appeal taken from the preliminary decree which appeal was partly successful. The success consisted in the fact that whereas the original preliminary decree had been passed on the basis that both father and son were liable for the whole decretal debt, in appeal the quantum of liability was somewhat reduced but the son's liability was very considerably reduced, the mortgage debt of some Rs. 18,000 being, so far as the son's share was concerned, reduced to Rs. 7819-4-0 including costs which sum was held to be binding on the joint family, the balance of Rs. 10,298-10-4 being found to be binding on the father alone.

2. The purchaser at the court auction was a third party.

3. That third party auction-purchaser is not a party to this appeal not having been joined because on notice given the auction, purchaser's widow and representative stated that she is not interested one way or another whether the sale be confirmed or set aside. The decree-holder asks for the confirmation of the sale in order that he may receive the money. The judgment-debtor, a minor, opposes the confirmation because he hopes that now if there is a fresh sale this property which was sold for Rs. 11,100, but which he thinks is worth Rs. 20,000, would fetch a better price. It seems to us that this matter is concluded by 10 All 1661 because as the Privy Council pointed out a sale cannot be set aside even if the decree under which the sale took place in execution is not merely varied but reversed. It is true that in that case the sale had been confirmed but in our opinion that makes no difference when it is borne in mind that under O. 21, R. 92 this sale must be confirmed. That is to say, the Court is required to confirm a sale unless there is a successful application under Rr. 89, 90 or R. 91 of O. 21. There has been an application made in this case under R. 90 but that application has been disallowed and in any case was an ineffective application because it was made by a person not a party. That is to say, the minor having had a guardian ad litem appointed, the application was made not by his guardian ad litem but by his mother: 1 NLR 1282 and 45 All 623.3 It is true that his mother much later and long after the time to make an application had passed got the guardian ad litem removed and had herself made guardian ad litem but she was then out of time and no fresh effective application was made by her. We have great doubt whether the application she made was an effective application at all. However, it was considered and it was dismissed. Accordingly this is a case where an application was made under R. 90 and disallowed. It follows directly in our opinion that under the provisions of O. 21, R. 92(1) the Court is bound to confirm the sale. We are quite clear that the proviso to R. 92(2) does not relate to R. 92(1). It is said, however, that the Court has power to refuse to confirm a sale where the provisions of S. 144 are applicable and it is said that here the decree having been varied the party who has suffered as a consequence of any act done under the varied decree would be entitled to restitution.

4. In our opinion, however, the Privy Council decision makes it plain that merely because a decree has been not merely varied but reversed that does not entitle the Court to set aside a sale to a third party. But here all such difficulties verily disappear when the facts are considered. There is here no question of restitution. Here under the varied decree Rs. 7819-4-0 is binding on the joint family. Consequently the sale of joint family property for Rupees 11,100 of which Rs. 5550 would be allocatable to the father's share and Rs. 5550 to the son's share would be proper. Under the varied decree not only is Rs. 7819-4-0 binding on the joint family but Rupees 10,298-10-4 is binding on the father alone. It follows directly that in addition to the property sold a great deal more could properly be sold so far as the father's share is concerned and a little more could be sold so far as the son's share is concerned.

5. It is very true that in this case the appeal was from the preliminary decree and it is also well established that where there is an appeal from a preliminary decree and in the Appellate Court the preliminary decree is varied so that the final decree is different from that passed by the trial Court, it is the final decree which carries into effect the preliminary decree as varied by this Appellate Court, that is the effective final decree: 39 All 641.4 But although this would cause the decree under which the sale took place to merge in the final decree of the Appellate Court, that fact, in the absence of any stay rendering it improper to proceed with the execution of the trial Court's final decree would not invalidate the sale as against the third party purchaser, though different considerations might apply where the decree-holder is the purchaser: AIR 1931 All 655.5

6. Finally it is said that this appeal must fail because the auction-purchaser has not been joined: 26 NLR 1276 at p. 129. But in our opinion in this case after the auction-purchaser had been given notice and had expressed no interest one way or another, it was entirely unnecessary to join him: 11 Pat 504.7 It would have been quite different were the purpose of the appeal to set aside the sale: 26 NLR 127. 26 NLR 127 was a case where the purpose of the appeal was to set aside the sale and no notice was given to the auction-purchaser who was the person most likely to be affected and not unnaturally the Court held that in the absence of the person most concerned the appeal could not succeed. Here notice has been given. The auction-purchaser has not shown any interest one way or another and in any event the purpose of the appeal is to confirm the sale. Presumably a person when he bids at an auction wants to buy the property and therefore the appeal is helping on his interest rather than the reverse. In our opinion, accordingly the appeal succeeds with costs and the sale must be confirmed.

R.M/R.K

7. Appeal allowed.