The main legal point established in the judgment is that the court auction purchase can stand confirmed on the dismissal of the application to set aside the sale under O.XXI R.90 C.P.C., and title can pass to the auction purchaser even in the absence of an express order of confirmation.

Bhat, J.

Respondents 1 and 2 are the legal representatives of the plaintiff who filed suit O.S.36 of 1979 before the Munsiffs Court, Adoor for partition and separate possession of his 1/7 share and other reliefs. The suit was decreed and a preliminary decree for partition was passed. The appeal filed by the first defendant was dismissed. Hence the second appeal by the first defendant.

2. The relevant facts can be summarised as follows: As a result of Ext. B1 assignment deed dated 7-5-1124 and Ext. A10 decree dated 15-1-1959 in O.S.61 of 1958 of the Sub Court, Quilon, seven persons namely, Kesava Pillai, second defendant and his brothers and sisters had equal right over the suit property. After the death of Kesava Pillai, his widow and children sold his 1/7 share to the plaintiff under Ext. Al sale deed dated 2-11-1976. It was on this basis that the plaintiff sued for partition and separation of his share and other reliefs. It appears, that even during the lifetime of Kesava Pillai his 1/7 share was sold in court auction in execution of a decree in O.S.61 of 1958 and purchased by the first defendant. Kesava Pillai filed an application to set aside the sale under Order XXI Rule 90 C.P.C. and that was dismissed. The order was not challenged in appeal or revision. Since only an undivided share was purchased, first defendant did not seek to obtain delivery of the property purchased by her. It appears, no express order had been passed confirming this sale. On these averments first defendant contended that long before Ext. Al sale deed in favour of the plaintiff, Kesava Pillai's 1/7 share had been purchased in court auction by the first defendant and, therefore, plaintiff has not derived any right.

3. The trial court found that the court auction sale had become infructuous by afflux of time on account of delivery not having been taken within one year of court auction sale and upheld the plaintiffs title. The appellate court held that the court auction sale not having been confirmed by an express order, the sale had not become absolute and, therefore, Kesava Pillai had not been divested of his title during his lifetime and plaintiff had acquired 1/7 right.

4. The only question which arises for consideration in the appeal is whether notwithstanding the failure of the executing court to pass an express order confirming the court auction sale in favour of the first defendant, first defendant can be said to have acquired right in the property? If this question is to be answered in affirmative, it must necessarily follow that the plaintiff has not derived valid right. If the question is answered in the negative, it must be held that the plaintiff has derived valid right and the first defendant has not acquired any right.

5. It is argued for the appellant that even without the court passing an express order in confirmation of the sale, the sale stood confirmed on the dismissal of the application under Order XXI Rule 90 C.P.C. and, therefore, first defendant's title as court auction purchaser has become absolute and Ext. Al cannot pass title in favour of the plaintiff. Learned counsel for the respondents would contend that law does not contemplate an automatic confirmation of the sale, the sale without confirmation is incohate and title does not pass to the court auction purchaser. Learned counsel for both sides have referred us to a large number of decisions and we will briefly refer to the more important among them.

6. In Janak Raj v. Gurdial Singh (AIR 1967 SC 608) the Supreme Court observed that in terms of Order XXI Rule 92 C.P.C. either when an application to set aside the sale has not been filed or when an application has been filed but dismissed, the court is bound to confirm the sale.

7. In the decisions in Baruram v. Upendra Nath (AIR 1934 Calcutta 822), Subramania v. Ramaswami (AIR 1937 Madras 560) and Ramachandra Bhagat v. Eva Mitra (AIR 1960 Patna 378) the question arose whether Order XXXIV Rule 5 CPC could be invoked where