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High Court Of Calcutta
Nirmal Chandra Mukherji, Bankim Chandra Ray
SASHI BHUSAN MITRA - Appellant
Versus
RAMLAL MITRA - Respondent
Appealfromoriginalorder 1062 Of 1975
Decided On : 09/01/1976
CIVIL PROCEDURE CODE - ORDER 34, RULE 5 - SALE - CONFIRMATION - NECESSITY OF FORMAL ORDER - EFFECT OF DISMISSAL OF APPLICATION UNDER ORDER 21, RULE 90 - RIGHT TO REDEEM MORTGAGE - SUBSISTENCE TILL SALE BECOMES ABSOLUTE.
Fact of the Case:
The appellant, a judgment-debtor, filed an application under Order 34, Rule 5 of the Code of Civil Procedure to set aside a sale held in execution of a mortgage decree. The application was dismissed by the court below on the ground that the sale was deemed to be confirmed when the application under Order 21, Rule 90 was dismissed, although the court omitted to pass an order confirming the sale.
Finding of the Court:
The court held that the sale became absolute after the application under Order 21, Rule 90 was dismissed, and that a formal order confirming the sale was not necessary. The court also held that the right to redeem the mortgage under Order 34, Rule 5 would not remain open till the sale became absolute.
Issues: 1. Whether a formal order confirming the sale is necessary when an application under Order 21, Rule 90 is dismissed. 2. Whether the sale becomes absolute after the application under Order 21, Rule 90 is dismissed. 3. Whether the right to redeem the mortgage under Order 34, Rule 5 subsists till the sale becomes absolute.
Ratio Decidendi: 1. The court held that a formal order confirming the sale is not necessary when an application under Order 21, Rule 90 is dismissed. The court relied on the provisions of Order 21, Rule 92, which states that the sale shall be confirmed if no application is made under Order 21, Rule 89, 90, or 91, or when such application is made and disallowed. 2. The court held that the sale becomes absolute after the application under Order 21, Rule 90 is dismissed. The court relied on the provisions of Order 21, Rule 92, which states that the sale shall be confirmed if no application is made under Order 21, Rule 89, 90, or 91, or when such application is made and disallowed. 3. The court held that the right to redeem the mortgage under Order 34, Rule 5 does not subsist till the sale becomes absolute. The court relied on the provisions of Order 34, Rule 5, which states that the judgment-debtor can apply to the court to set aside the sale within 30 days from the date of the sale.
Final Decision: The appeal was dismissed, and the order passed by the court below was confirmed.
Certainly. Based on the provided legal document, here are the key points:
The dismissal of an application under Order 21, Rule 90 of the Civil Procedure Code results in the sale being deemed confirmed and becomes absolute without the need for a formal confirming order. This means that once such an application is dismissed, the sale is considered final [judgement_subject].
A formal order confirming the sale is not necessary for the sale to be regarded as absolute. The court's decision to dismiss the application under Order 21, Rule 90 automatically confirms the sale, and the sale's confirmation is implied by the court's order or lack thereof [judgement_subject].
The right to redeem the mortgage under Order 34, Rule 5 of the Civil Procedure Code does not survive until the sale becomes absolute. Instead, the judgment-debtor's right to redeem is limited to a specific period after the sale, typically within 30 days from the date of sale, regardless of whether the sale has been formally confirmed [judgement_subject].
The appeal challenging the lower court’s order was dismissed, and the original order was upheld. The court emphasized that the sale had already become absolute following the dismissal of the application under Order 21, Rule 90, and therefore, the application under Order 34, Rule 5 was rightly dismissed (!) .
The court clarified that even in the absence of a formal order confirming the sale, the sale is considered confirmed and absolute once the application under Order 21, Rule 90 is dismissed. The sale certificate and the substance of the court's actions support this conclusion (!) (!) .
The court rejected the argument that the sale only becomes absolute upon disposal of an appeal. It held that the sale is deemed absolute once the application under Order 21, Rule 90 is dismissed, and subsequent proceedings do not alter this status (!) .
The court also discussed the procedural aspects of how the sale confirmation is recognized and clarified that the absence of a formal confirmation order does not affect the validity or finality of the sale once the relevant application is dismissed (!) .
The decision underscores that the right of redemption is limited and does not extend until the sale is made absolute, and the sale's confirmation is a matter of legal inference from the court's order or the lack of an order to the contrary (!) .
These points collectively reinforce the legal principle that the sale in execution proceedings becomes final and absolute upon the dismissal of the application under Order 21, Rule 90, without requiring a formal confirmation order, and that the right to redeem is limited to a specified period before the sale becomes fully binding.
( 1 ) THIS is an appeal against an order dated 5th May, 1975 passed by Shri M. M. Das, 4th Subordinate Judge, Alipore in Title Execution Case No. 1 of 1971 dismissing the application filed by the appellant under Order 34, Rule 5 of the Code of Civil Procedure.
( 2 ) THE facts of the case may briefly be stated as follows:--The property in suit is 75. Chakraberia North, Calcutta, comprising 10 cottahs of land with two storied (buildings. The property was sold at Rs. 41,600 to the decree-holder in execution of a mortgage decree. The appellant, who is the judgment-debtor filed an application under Order 21, Rule 90 of the Code for setting aside the sale. A Miscellaneous Case was started and the same was dismissed for default. Thereafter the appellant filed an application under Section 151 of the Code for setting aside the order of dismissal. That application was also dismissed. The appellant also filed an application under Section 36 of the Bengal Money Lenders Act and obtained order staying execution proceedings till the disposal of the case. The appellant preferred an appeal to this Court against order dated 16th June 1973 by which the application under Order 21. Rule 90 was dismissed. The appeal was numbered at F. M. A. T. 2827 of 1974. On 11th January 1975 the appellant made an application under Order 34, Rule 5 of the Code and deposited Rs. 19,625 for decretal amount, costs and interest and also 5% of the purchase money on Rs. 41,600. The application under the Bengal Money Lenders Act was not pressed and the same was dismissed for non-prosecution in view of the application under Order 34, Rule 5 of the Code. The application under Order 34, Rule 5 was dismissed by the Court below on the ground that the sale was deemed to be confirmed on 16th of June 1973 when the application under Order 21, Rule 90 was dismissed although the court omitted to pass an order confirming the sale, and also on the ground that there was no appeal from the order of dismissal dated 16th of June 1973 and there was no order of stay. Being aggrieved by the aforesaid order, the judgment-debtor has preferred the present appeal.
( 3 ) MR. Saktinath Mukherjee, learned Advocate appearing on behalf of the respondent, raises a preliminary objection about the maintainability of the appeal. Mr. Mukherjee submits that the suit for the enforcement of the mortgage decree and recovery of dues was valued at Rs. 13,000, and that being so any proceeding in connection with that suit should be similarly valued and as such the learned District Judge was the proper court where the appeal ought to have been filed. As the valuation of the subject-matter falls within the jurisdiction of that court the appeal has been wrongly filed in this Court. Mr. Mukherjee submits that the valuation of the suit determines the forum of the appeal. In support of his contention he refers to several decisions. He first cites a case (Kiran Singh v. Chaman Paswan ). In this case it was held that the decree passed without jurisdiction is a nullity. It was further held "the words 'unless the over-valuation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits' in Section 11 clearly show that the decrees passed in such cases are liable to be interfered with in an appellate court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results and that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined". We do not see how the- principle laid down in this case applies to the fact of the present case.
( 4 ) MR. Mukherjee next refers to a decision reported in AIR 1923 Cal 405 (Harihar Das Chowdhury v. Raj Kumar Mukherjee ). In this case it has been held that "when Section 21 of the Bengal Civil Courts Act refers t
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