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1961 Supreme(Pat) 40
HIGH COURT OF PATNA
ANANT SINGH, J.
Virendra Kishore Shrivastava
Versus
Kesharinandan Prasad
Civil Revn. No.697 of 1960
Decided On : 10-03-1961
A.C. Roy and Pradyumna Narain Singh, for Petitioner; Balbhadra Prasad Singh and H.L. Agarwala, for Opposite Party.
An order confirming a sale in execution of a decree is appealable, and therefore, no revision application is maintainable where an appeal lies.
Headnote:
EXECUTION OF DECREE - SALE - CONFIRMATION - EXTENSION OF TIME FOR DEPOSIT OF DECRETAL AMOUNT - JURISDICTION OF COURT - LIMITATION ACT, 1908, ARTICLE 16 - APPLICABILITY - BIHAR LAND REFORMS ACT, 1950, SECTION 6 - VESTING OF PROPRIETARY INTEREST IN STATE - EFFECT ON SALE HELD PRIOR TO VESTING.
Fact of the Case:
Petitioner challenged the order of the executing court confirming the sale of his property in execution of a decree, arguing that the court lacked jurisdiction to extend the time for depositing the decretal amount and that the sale was invalid as his proprietary interest had vested in the State prior to confirmation.
Finding of the Court:
The court held that the revision application was not maintainable as an appeal lay to the District Judge from the order in question. It declined to express an opinion on the other points raised by the parties, including the jurisdiction of the executing court to grant time for payment of the decretal amount, compliance with the order, the saleable interest of the judgment-debtor in the property, and the effect of the vesting of the proprietary interest in the State on the sale.
Issues: 1. Maintainability of the revision application. 2. Jurisdiction of the executing court to extend the time for deposit of the decretal amount. 3. Compliance with the order of the executing court. 4. Saleable interest of the judgment-debtor in the property. 5. Effect of the vesting of the proprietary interest in the State on the sale.
Ratio Decidendi: 1. Where an appeal lies, no revision can be entertained (Section 115, Code of Civil Procedure). 2. The order under revision was a two-fold order, refusing to extend the time to deposit the decretal dues and confirming the sale. It was thus clearly an order within the meaning of Order 21 Rule 92 of the Code of Civil Procedure, which provides for the confirmation of sale after application under Rule 89, Rule 90 or Rule 91 of the Code has been disallowed or where no such application has been made. Any order passed under Order 21 Rule 92 of the Code is appealable as provided under Order 43 Rule 1 (j) of the Code. 3. The question of whether the petitioner judgment-debtor had any saleable interest in the property on the date of vesting would be a question not under Order 21 Rule 89 or under Order 21 Rule 90 or under Rule 91, but it would be a question under section 47 of the Code of Civil Procedure which again is appealable.
Final Decision: The revision application was dismissed, with each party bearing their own costs.
2. This case has a chequered history. It would appear that the opposite party brought a suit for recovery of possession and mesne profits and the court passed a decree for Rs.5,385 and odd with interest at the rate of six per cent per annum until payment besides cost. There was an appeal by the petitioner when the amount of the mesne profits was reduced to Rs.4,900. It was, however, before the appeal was filed that the opposite party put the decree in execution in the aforesaid execution case and brought to sale and himself purchased on the 24th of January, 1955, seven annas share of the petitioner in his milkiat interest including jirait lands etc. in touzi No.5883 of Mouza Raghunathpur Basant in the district of Muzaffarpur.
3. The sale was held in six lots and the total sum fetched at the sale was Rs.4,700, although the modified decree granted by the appellate court was for a few hundred rupees more.
4. It was in the appeal filed by the petitioner against the decree for mesne profits that an order for stay of confirmation of sale was made by the District Judge on the 10th of February, 1955. The appeal was disposed of on the 14th of March, 1955, reducing the amount of mesne profits, as mentioned above. There was a second appeal by the petitioner to the High Court in second Appeal No.897 of 1955, and in that appeal there was an order passed, staying confirmation of sale on the applicant depositing a sum of Rs.2,500, which was actually deposited in the court below on the 5th of December, 1955. The stay order was passed on 10th of November, 1955. The decree-holder withdrew the amount on the 12th of December, 1955. This second appeal was dismissed on the 27th of February, 1959, when the order staying confirmation of sale was automatically vacated.
5. While the petitioner was pursuing his appeal before the District Judge and in the High Court, he had also filed an application under Order 21 Rule 90 of the Code of Civil Procedure on the 7th of September, 1955, for setting aside the sale held in that execution case on the ground of fraud and material irregularity in publishing and conducting the sale. This application was dismissed on the 7th of December, 1955.
6. With the dismissal on the 27th February, 1959, of the second appeal of the petitioner, the order staying confirmation of sale in the execution case came to an end with effect from the same date.
7. It was on the 12th of March, 1959, that a petition was filed on behalf of the petitioner before the executing court under sections 47 and 151 of the Code of Civil Procedure. It was alleged in that petition that as the decree of the trial court regarding mesne profits had been modified by the lower appellate Court, the sale, which had already taken place in execution of the decree, was not legally maintainable. It was further alleged that the decree-holder opposite party having withdrawn a sum of Rs.2,500, which was deposited by the petitioner judgment-debtor in compliance with the order of the High Court as a condition precedent to the slaying of the confirmation of sale, the sale had become infructuous, and the decree-holder auction-purchaser was not entitled to have the sale confirmed. It was also alleged that as the decree-holder auction-purchaser had further withdrawn another sum of Rs.587-8-0, towards the satisfaction of the decree, which sum had been deposited by the petitioner, the sale had become infructuous. It was claimed that for the balance of the decree money of rs.2,672-8-0, the decree-holder could take a fresh execution and that the sale held on the 24th Japuary, 1955, for Rs.4,700/- could not be confirmed.
8. This petition
