ABDULLA v. MENIKA et al

085-NLR-NLR-V-23-ABDULLA-v.-MENIKA-et-al.pdf


( 301 )
[FtolBbhgh.]
Present: Bertram C.J., De Sampayo J., and Garvin AJ.ABDULLA v, UENIKA et of.
295—0. R. Colombo, 23,526.
Execution—FiscaPs sole—Confirmation of sate after decree was setaside in appeal—Is confirmation of sale a step in execution t—Corfirmation after lapse of several years.
Per Bebtbau 0.1 and Db Sampayo J., dissentients Gabvzk AJ.—The confirmation of a sale is part of the execution, proceedings, anda sale is not complete until it is confirmed.
A Court cannot confirm a sale held in execution of a decreewhich has been set aside in appeal after the sale and before itsconfirmation.
rpiHE facts are set out in the. judgment.
H. V. Perera, for purchaser, appellant.—The question is whetherthe Supreme Court may confirm a sale in execution of a decreeafter the decree was set aside in appeal. De Mel v. Dharmaratne,1which decades that the Court has no power to confirm the saleafter the decree was setaside, was wrongly decided. That decision,as well as the earlier decision to the same effect in Idroos Lebbe v.Meera Lebbe,2 is based on two Indian,cases: 2 Bom. 540 and• 10 AU. 83. The latter Indian case is distinguishable, in that theexecution purchaser was there the decree-holder himself. Thedecree-holder purchasing property at the execution sale takes itsubject to the- ultimate result of the litigation, so that he must giveup the property purchased by him in the event of the decree beingsubsequently set aside. But “ bona fide purchasers, who were noparties to the decree which was then ( …. at the timeof thesale) valid and in force, had nothing to do further than to look to thedecree and to the order forsale.” Seejudgmentof the Privy Councilin 10 AU. 166. In that case there were several sales in execution ofa decree, which was subsequently set aside on the ground that theCourt had no territorial jurisdiction to entertain the action. Someof the properties put up for sale were purchased by the decree-holders, and the others were purchased by persons who were notparties to the action. The Privy Council set aside the sales to thedecree-holders, but upheld the sales to the others. The principleunderlying this decision has been recognized in several Indianoases (7 W. R. 312, 8 W. R. 300, 10 W R. 164, 12. W. R. 608, and23 Cal. 857). The judgment of the Supreme Court in Hamidia v.Kirihamy* is based on the same principle. Two lands were sold in
1 (1903) 7 N. L. B. 294.* l Tam. 6.
*(2927) 19R.L.B, 216.
1982.
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1222. execution of the decree in the present case. One Kiri Banda pur-Abdulla °hased one of the properties, and the present appellant purchasedv. Menika the other. The Supreme Oourt upheld the sale to Kiri Banda.
[Beutbam C.J.—The sale to Kiri Banda was confirmed before thedecree was set aside.] That is so, but the decision of the SupremeCourt is based not on that fact, but on the fact that there was avalid decree subsisting at the time of the sale.
The decision in 2 Bom. 540 is inconsistent with the judgment ofthe Privy Council in the case cited, and cannot be regarded ascorrect. 'Moreover, the Judges who decided the Bombay casepurport to apply the principle laid down by the Privy Council in7 Bengal L. B' 186, viz., that an execution sale of property whichby its nature is not subject to seizure and sale in execution is void.But that principle has no application* ■
In Be Md v. Dharmaratne,1 Wendt J. bases his decision on theground that “ the confirmation of the sale is a step in the execution'of the decree which the Court has no jurisdiction to take if thedecreeno longer exists.” But under section 283 of our Code the Courtcan confirm the sale only after the expiration of the thirty daysimmediately following the receipt of the Fiscal’s report of sale.Within these thirty days if a person interested has not had the saleset aside for material irregularity under section 282, the purchaserwould have paid the whole of the purchase money (sections260-261),and the money so paid may have been drawn by the judgment-creditor, as in the present case. Therefore, the confirmation ofa sale is not a step in aid of execution, but the first of a series ofsteps taken by the Court to implement the sale (31 Cal. 1011).The power of the Court, to take these steps depends not on theexistence of a valid decree at the time they are taken, but on thevalidity of the sale …. on the existence of a valid decreeat the time of the sale….
Under section 283 .the Court is bound to confirm the sale at theproper time; the words of the section are imperative. The Courtcan stay its hand only where it appears that the judgment wassatisfied at the time that the writ of execution issued. The provisoto section 316 of the Indian Act (XIV. of 1882) to the effect thatthe Court shall not issue a certificate of sale if there was no validdecree subsisting at the time finds no place in our Code. In Indiathe refusal to confirm a sale under a decree which has been subse-quently set aside may be justified under this proviso, as was donein 29 All. 591.
The purchase money has been paid out to the judgment-creditor.There is ho provision in the Code enabling the purchaser to recoverthat money, and it would, therefore, be inequitable to compel himto give up the property purchased by him.
M1903) 7 N. L. It. 274.
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N. E. Weerasooriya, for defendants, respondents.—The Courthad no jurisdiction at all.* The whole proceedings are bad.Hukam Chand on res judicata, 397-398. There is no distinction,between want of essential and of territorial jurisdiction in theabsence of an estoppel or waiver. (Hukam Chand, 411, 416-420;4 AU. 382; 26 Cal. 727; 20 N. L. R. 372.) Here, on the plaint,the Court had in law no jurisdiction. The judgment on whichthe sale took place was ex parte. Defendants had proceedingsre-opened, and took plea to jurisdiction at first opportunity. Thedecision in 19 N. L. R. 2151s wrong. It is based on the assumptionthat 10 AU. 166 applies, but that case has no application. In itthe Court had jurisdiction with respect to some of the causes ofaction. The decree was never set aside, but only modified. Theexistence'of jurisdiction is a condition precedent even in the caseof'a bona fide purchaser. (9 AU. 191; 113 Mad. 211; 14 Cal. 18 ;271. A. 216 ; 27 Cal. 11; Evidence Ordinance, s. 44.)
In this case decree was set aside before confirmation of Bale.Confirmation is essential. Judgment-debtor is not divested of titlenntil confirmation (section 289). Confirmation is a step in executionof a decree. ' It is not obligatory on the Court, but discretionary.Section 283 appears in Chapter XXIl. of the Code under title “A,”sections 218-318, viz., execution of decrees to pay money. NoFiscal’s conveyance or possession can be obtained until confirmation.(Sections 286-292; 12 W. R. 201; 7 Cal. 91.) If the sale is illegal,even an order for delivery of possession may be opposed (27 Cal. 727). .Execution proceedings do not abate likea suit (3 Bam. 221). Underthe Indian Code confirmation is not essential. 30 Cal. 1011 doesnot apply. In^lO AU. 166 the question of confirmation was notconsidered. Probably the sales there referred to were actually ,confirmed, as a sale deed is mentioned. In 19 N. L. R. 215 alsothe sale had been confirmed. Confirmation is expressly consideredin 1 Tam. 6, 7 N. L. R. 274, C. L. Rec. 116, 2 Bam. 540, and 10 %AU. 83, which should be followed.
The Code contemplates existence of debt and decree; section 283(proviso), 15 N. L. R. 272, and 17 N. L. R. 392. Even a bona fidepurchaser runs certain risks. He must satisfy himself as to theexistence of jurisdiction and of the decree (25 Cal. 175). Even in10 AU. 166 there was a decree subsisting, as the original decreewas not set aside, but only modified. The purchaser buys subjectto order on an application under section 344. He is a party to theaction within the meaning of that section. (16 N. L. R. 414,
1 Cur. L. S. 166, 21N. I. R. 137.)
The applicatidn for confirmation was stale. The parties shouldhave been noticed (18 N. L. R. 29). No equitable considerationsshould apply. The judgment-creditor should not have drawnproceeds sale before confirmation and without notice (section 350)* *
1922.
Abduila
v.Menika
( 304 )
1922.
Abdulla
o.Mmdha
H. F. Perera, in reply.—The passage eited from Hukam Ohand,397, has no application. The Court did not “ transcend the-limits prescribed for it by law.” The passage most be taken torefer to the essential jurisdiction of the Court (see Huiam Ohand9448-449). Modification of decree has the same effect as revemal(31 Cal. 499).
Cwr . ®dv. wti.
January 16, 1922. Gabvin A.J.—
This appeal, whitfc was reserved by my Lc&ft for decision by abench of three Judges, raises two questions of law of special import-ance to purchasers at sales in ex$3ution of decrees of Court. Ofthese, the first is whether a purchase made by a third party at asale held in execution of a decree is void and a nullity, for the reasonthat at a later stage following upon an appeal it was held that theCourt had no jurisdiction to entertain the action. The secondis whether the confirmation of such a sale is a step which a Courthas no jurisdiction to take as and from the moment at which itsdecree is set aside in appeal. The material facts are as follows.Plaintiff sued on a promissory note and obtained judgment bydefault. Decree was entered on August 17, 1911, writ issued,and in due course certain lands belonging to the defendant wereseized and sold on November 9, 1911. At the sale one Kirjjiamybecame the purchaser of one of the properties, and the otherswere purchased by the present appellant. The full amount' ofthe decree was levied, arid the amount .drawn out of Court by theplaintiff. Kiri Banda applied for confirmation of the sale to him,and on January 16, 1912, his application was allowed. In 1914the defendant moved to re-open the proceedings on the groundthat he received no notice of the action. His application wasrefused, but on appeal the decree was on September 4, 1914,set aside, and be was admitted to appear and defend.
On December 1,1914, the Commissioner of Bequests made orderdismissing the action, upholding the defendant’s objection to thejurisdiction of the Court, on the ground that the cause of actionarose outside the local limits of its jurisdiction. On May 27,1921,the sale to the appellant was confirmed, and on June 15, 1921, heobtained a Fiscal’s transfer for the lands purchased by him: Fourdays later, i.e., on, June 19, 1921, the defendant moved the Courtto set aside its order confirming the sale, on the ground that thedecree had been set aside. The Court allowed the motion, holdingthat the order confirming the sale had been made per incwriatn.The appeal is from this order. These sales, it is said, are a nullity,because the Court of Bequests at the trial which followed on theappeal held that it had no jurisdiction to try the case, because theoause of action did not arise within its local limits. This contentionwas based mainly on the following'passage from HvJcam CharuTsLaw of Bes Ad judicata ad page 397: “ When a Court transcends
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the limits prescribed for it by law, and assumes'* to aet where ithas no jurisdiction, its adjudication will be utterly void and of noeffect either as an estoppel or otherwise.” This is too generala proposition to be regarded as a sufficient authority for the con-tention that a sale in execution ordered by a Court of law, which,so for as its proceedings showed, had jurisdiction to entertain theaction, passed no title even to a purchaser who was a stranger tothat action.
A prudent person who examined the recoed of this case witha view to purchase the property advertised for sale on November 9,1911, would have seen that this was an action on a promissorynote for the recovery of an amount under Bs/300. The natureof the cause of action and of the relief claimed was such as camewithin the jurisdiction of the Court of Bequests. There wasnothing on record whether in the plaint or elsewhere to showthat this was not an action which the Court of Bequests of Kuru-negala had jurisdiction to entertain; and there war filed of recordthe usual returns in proof of service of process on the defendant.
In such a case as this the contention under consideration canonly prevail if in law every step taken by a Court must in allcases be held to be void and a nullity db initio upon collateralproof that an averment as to the local jurisdiction of the Courtwas, in fact, incorrect, or that the defendant bad not been servedwith process. For this proposition no direct authority was cited,but in the course of argument reference was made to the cases ofIhbal Begam v. Sham Sundar1 and of Durga Charan Mandat v.Kali Prasanna SarJear? These cases merely state that a sale inexecution of property which is by law declared to be unsaleableis bad, and that the Court which orders the sale of such propertyacts without jurisdiction. When a Gourt does an act whichmanifestly transcends the limits prescribed for it by law, that actis a nullity, and no rights can be acquired in consequence thereof.But that is not the case here.
The nature of the action and of the relief claimed was such ascame well within the essential jurisdiction of the Court; the recordcontained primd facie evidence of all other necessary jurisdictionalfacts. It would, indeed, be a serious matter if, under these circum-stances, a sale in execution should he held to be a nullity whichconveyed no rights to a bona fide .third party purchaser, merelybecause in a subsequent proceeding, to which in this instance hewas not even a party, it was established that the defendant wasnot, in fact, served with process, or that some jurisdictional factrelating to locality did not in fact exist.
It is not on the existence of facts, but on the allegation thatthose facts exist upon which the jurisdiction of a Court primarilydepends (Hukam Ghand, 241-243). From the application of11. L R. 6 AU. 382.* 1. L. R. 26 Cal, 727.
1988.
Gabvzn A^.
Abdtfae. MenUsa
25
th» principle to the facte of this case it follows that the Court hadat all times material to tins appeal jurisdiction over the subject*matterof this action. There was nothing on record at the date of thesale which discloses a want of essential, local, or personal jurisdictionin the Court.
1b a purchaser at an execution sale bound to pursue his inquiriesany further f Is such a bona fide third party to be deprived of hisrights by the disclosure of some hidden defeot in the matter of localor personal jurisdiction ? The answer to these questions must, Ithink, btfin the negative. At page 448 of his work Hukam Chand,'dealing with the case of a “ party who has been wronged by beingjudged without any opportunity to make his defence,’* cites thefollowing from a judgment of one of the American Courts : “ Hecannotgenerallyaffeottherights of innooentthird parties growingoutof a judgment regular; on its face. But as to those parties, it wouldbe as great a violation of the principles of natural justice todeprive them of property acquired for a valuable consideration, byestablishing some hidden infirmity preceding the judgment, asit is to deprive the defendant of his rights by maintaining theintegrity of the record. And as the law cannot minister abstractjustice to all the parties, it is at liberty to pursue such a course%% will best subserve public policy. This course requires that thereshould be confidence, in judicial tribunals, and that titles restingupon the proceedings of these tribunals should be respected andprotected . . . . ”
Had the judgment entered in this case remained unreversed,as a result of the subsequent proceedings and the appeal to theSupreme Court, could the defendant have impeached it by col-lateral proof of want of jurisdiction with a view to defeat theappellant’s title ? The passage above cited is an authority for theproposition that no such opportunity would have been accordedhim.
1 do not think it makes any difference to the appellant that ina subsequent proceeding to which he was not a party the judgmentof the Court of Bequests was reversed in appeal.
“ The hardship anting from an erroneous or inadvertent decisionupon jurisdictional questions is no greater than that issuing froman erroneous or inadvertent decision upon other matters. Thatthe reversal of a judgment in an Appellate Court* shall not affectrights acquired under it by third parties is a rule universally anduncomplainingly acknowledged.’1 (Huhom Chand, 448-449.)
For these reasons I hold that the rights acquired by the appdlantat (he sale in execution are unaffected by the subsequent proceedingsto which I have referred.
It is worthy of note that in an action by the defendant to vindi-cate his title to the land purchased try Kirihamy, it was contendedunsuccessfully that the sale to him in execution was a nullity.
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This oase ultimately oame up for hearing in appeal before An™and Schneider JJ., vide 19 N. L. R. 215, who rejected the contentionthat the sale was a nullity.
It remains for me to consider the second of the two questionswhich arise on this appeal. The contention that a Court has' nopower to confirm a sale held in execution of its decree after thatdecree has been set aside in appeal is founded on tw6 Indian judg-ments which were approved and followed in two judgments of thisCourt. The first of these rulings was made in the case of Basappabin Malappa AJci v. Dundaya bin Shivlingava,1 and is to the effectthat a Court has no jurisdiction to confirm a sale regularly held inexecution of a decree after that decree has been set aside in appeal.The reason for this ruling would seem to be that from the momenta decree of Court is reversed in appeal it ceases to have jurisdictionto take any further steps to execute it. It cannot be disputed thata Court cannot proceed to execute a decree which has ceasedto exist. But is the confirmation of a sale in execution of a decreevalid and subsisting at the date of the sale a step in the executionof ihe decree ?
No light whatever is shed upon this question by the judgmentin Mvl Chand v. Mukta Prasad,* which follows the ruling in theearlier case. Mr. Justice Lawrie, in the case pf Idroos LebbeMira Ldbbe? founds his judgment upon the authority of the twoIndian cases to which I have referred* and adds no observations ofhis own.
Before dealing with the last of the cases cited, I wish to remarkthat section 312 of the Indian Civil Procedure Code, which relatesto the issue of a certificate of title after confirmation of sale, issubject to the proviso “ that the decree under which the saletook place was still subsisting at the date, of the certificate/* Le*,at the date of the confirmation of the sale because the certificatehas to bear that date. This may possibly justify the ridings ofthe Indian Courts, but there is no such limitation imposed by ourCode of Civil Procedure.
This brings me to the case of De Md v. Dharmaralmfi Thejudgment of Sir Charles Layard is in effect that the Civil ProcedureCode contemplates the existence of a valid and subsisting decreeat the date of confirmation. The argument is that sections 282and 283 contemplate the existence of a decree-holder at the timeof confirmation of the sale, and he proceeds “ when, however,- thedecree ceases to exist, there is no decree-holder who ean make anapplication or support it when made/’
I most respectfully beg to differ. Sections 282 and 283 con-template the presence of the decree-holder -in the event of an.application to set made a sale, but I can fold nothing in these
1 /. L. jB. 2 Bom* 640*9 1 Tam*
> 1. L. R. 10 _4U. S3.911903) 7 & L* B. 274,
1922.'
Gabvxr
Abduliav. Menifat
1928.
Gabvin A.J.
AbdtiUa0. Menika
( 308 )
sections whioh requires his presence at the confirmation of a sale.Indeed, confirmation is obtained by ex parte application, and mayunder the Oode be so obtained at any time after the prescribedlimit of thirty days, so long as no application has in the meantimebeen made to set aside the sale. I must, therefore, dissent fromthe statement that sections 282 and 283 of the Code contemplatea valid and subsisting decree at the time of confirmation.
Wendt J., in a brief judgment, says: “ The true principle appearsto me to be that the confirmation of the sale is a step in the executionof the decree which the Court has no jurisdiction to take if thedecree no longer exists/*
As indicated by me, the crux of the matter is whether or no theconfirmation of a Bale is a step in the execution of the decree.Mr. Justice Wendt apparently thought it was. I wish that he hadstated his reasons for his opinion.
That a decree when set aside in appeal ceases to exist is manifest;it is equally manifest that no step can be taken to execute a decreewhich has ceased to exist. Bat is the confirmation of a sale a stepin execution ? Sales are confirmed by our Courts after decreeshave been fully satisfied and satisfaction of judgment has beenentered. How can it be said that the confirmation of a sale undercircumstances is a step in execution of the decree, when at the time,of confirmation the writ has been returned fully executed, thedecree satisfied, and satisfaction entered of record ? The confirm-ation of a sale is a step taken by a Court to enable the purchaserto vest himself with title to property purchased by him at a saleauthorized by that Court. The sale, no doubt, is a step in execution,but not the act of the Court in assuring to a bona fide purchaserproperty which he purchased at such a sale.
Confirmation is a step consequential on, incidental to, or arisingfrom, the execution of a decree, but, despite a clear indication of myviews, nothing was urged at the argument in support of the assertionthat it was a step in execution of a decree.
If confirmation is a step in execution, so also must the issue ofthe Fiscal’s transfer, and even the issue of a writ to enable thepurchaser to obtain possession of the property purchased. I needhardly dwell on the inconvenience, hardship, and, I may even say,injustice to innocent purchasers which must result from this viewof the law. I can see no reason for the assertion that whereasconfirmation of a sale is a step in execution, any step subsequentthereto is only consequential on the execution of the decree. Theyare a succession of steps each following upon the other, and allconsequential on the sale in execution of the decree.
“ Execution,” it is said, “ is the life of the law.” The policy ofthe law is to protect innocent purchasers. There is the clearestpossible authority for the proposition that the reversal of a decreedoes not affect rights to property bona fide acquired at a sale
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regularly held in execution of a decree valid and subsisting at thedate oi the sale (Jan Ali Jan Ali- Chowdray).1 It is contendedthat, in view of the requirement of our law that a sale should heconfirmed, this applies only to the case of a sale which has beenconfirmed. But what is important is the principle underlyingthe decision, which applies with as much force to the case of apurchaser who has, as in this instance, parted with his money inexchange for the right to obtain title to and possession of propertysold in execution, and who, I think, is entitled to receive that whichhe has purchased and paid for, unless it is quite clear that theCourt is prevented from fulfilling its part.
A purchaser at a sale in execution may at any time find afterhe has paid full consideration, and the amount has been paid intoCourt ,and drawn by the plaintiff, that, despite the utmost despatchon his part, the decree has been reversed before he obtains con-firmation. If it is the law that such a sale cannot be confirmed,the purchaser takes nothing by his sale, and in cases in which themoney has been drawn by the plaintiff, the purchaser for his painsis left to recover the money as best he can.
It is a matter of common knowledge that the full market valueof property is seldom realized at Fiscal’s sales. If it is realizedthat this is the position in which a purchaser at such a sale mayfind himself, it will certainly not tend to improve matters. It is atall times open to a defendant, who contemplates appealing from, ajudgment to move for a stay of execution. There is, therefore, nohardship in the sale of his property pending appeal.
The provisions of the Civil Procedure Code and the generalprinciples to which I have referred lead me to the conclusionwhich, I think, is just to all parties; that conclusion is that theconfirmation of a sale in execution of a decree is not a step inexecution, and is a step which a Court has jurisdiction to takeeven after the decree has been set aside in appeal.
A decree for money is executed by the issue of a writ to theFiscal.That writ empowers him to levy if necessary by the seizure and saleof the property of the defendant the amount stated in the writ,which is the amount decreed, and costs. When the Fiscal returns thewrit to Court after a full levy and pays the amount into Court, andcertainly when, as in this instance, the full amount due to the decreehas been paid out of Court to the decree-holder, that decree has beenfully executed. It is incapable of being further executed. Thesubsequent confirmation of a sale held in pursuance of such a decreecannot surely be said to be a step in execution of a decree whenit is clear that the decree has been fully executed.* If it is notso in the case I have instanced, it is not so in the case under con-sideration, where the facts are identical in all material particulars,and, indeed, it is not so in any case. H, as I hold, confirmation
1922.
Gabvin A.J.
AbduUa
Menika
1 10 W. B. {Sutherland) 134.
1922.
Qabvdt A.J.
• Ab&uffav. Meatiest
( 310 )
ia not a step in execution of a decree, there is no foundation for thecontention that the Court had no jurisdiction to make such anorder merely because tire decree had been set aside at tire date ofthe application for confirmation.
The applicant for confirmation is in this case—as in many ifnotmost others—a stranger to the action. The only person interestedin the execution of a decree is the decree-holder.
I find it difficult to see why a third party who applies for confir-mation of a sale in execution should be said to be taking a step toexecute a decree in which he clearly has not the slightest interest.
The judgment in the case of Utneah Chandra Doss v. ShibNarain Mandal1 is instructive. “ The question raised in thisappeal/9 said the Judges/* is whether an application by a decree-holder, who has purchased a property in execution of his owndecree, asking the Court to confirm the sale, is an application totake some steps in aid of execution of the decree. Referring tothe application itself in this case, we find it was really made by thedecree-holder in his capacity as, purchaser of the property inquestion. It was indeed made not by the decree-holder as such,but by the auction purchaser; and viewing it in this light, it couldhardly be said that it was an application in aid of execution of thedecree.”
It is true that as a second reason for their conclusion, that appli-cation for confirmation of a sale in execution, even where thedecree-holder was tlje purchaser, was not a step in aid of execution,these Judges pointed out to the fact that no application to confirma sale was necessary under the Indian Code, but that does not weakenthe first of the two grounds on which their conclusion is based.
It is the decree-holder alone who can take a step in aid of exe-cution. An application by the purchaser for confirmation of asale in execution is not a step in execution, even when the purchaseris the decree-holder.
The order from which this appeal has been taken is founded onthe assumption that the Court had no jurisdiction to confirmthis sale, because its decree had then been reversed. This is, inmy opinion, an incorrect vie^ of the law.
It was somewhat faintly urged that in view of the length oftime which appellant permitted to elapse before he applied forconfirmation of the sale, that such confirmation should be deniedhim. As at present advised, I am not satisfied that a Court canrefuse to confirm a sale on the ground of mere lapse of time. Itis not, however, necessary to ^consider whether in a matter forwhioh express provision is made in our Code of Civil Procedurea Court has power to refuse to confirm a sale in exercise of a supposedinherent right, as no .case for equitable relief was ever presentedto or considered by the Court of first instance.
»/. L. R. 31 Cal 1011.
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For these reasons I think the appellant is entitled to be restoredto the position in whioh he was before the order of confirmationwas vacated. I would, therefore, allow the appeal, with costs.
Dk Sampayo J.— .
i m
Gabvhj AJ.
Abdullav. Menika
This appeal involves a point of practice of considerable importance.It is concerned with the power and duty of a Court with regardto the confirmation of a sale in execution of a decree whioh has beenset aside after the sale but before its confirmation. In this casethe Court entered a decree against the defendants for default ofappearance on August 17, 1911. In execution of the' decree,which was one for payment of money, three lands of the defendantswere seized and sold on November 9,1911.. One of the lands waspurchased by one Kiri Banda. The sale to him was on his appli-'cation confirmed by the Court on January 16,1912, and no questionnow arises with regard to it. The appellant, Mr. Vythiliqgam, wasthe purchaser of the two other lands, but no application was madeby him for the confirmation of the sale to him till 1921. In themeantime the defendants applied to re-open judgment, and on anappeal taken from a refusal of the application, the Supreme Courton September 4,1914, set aside the decree, and allowed the defend-ants to file answer and defend the action.
The case having gone back, the Court on December 1, 1914,.after the trial of an issue as to jurisdiction, entered decree in favourof the defendants, and dismissed the plaintiff's action. Nothingwas done in the case with regard to the sale in question untilMay 27, 1921, when the Court on the application of the appellantmade an ex parte order confirming the sale. After a lapse ofnine years from the sale, I think the Court should, as a matter ofordinary precaution, have given notice to the defendants, andthe result of that omission was that the Court confirmed the salewithout reference to the fact, to which the Court’s attention hadnot been drawn, that the decree had been set aside and the actionitself dismissed. The defendants then came forward and movedto set aside that order, and this appeal is taken from an ordersetting aside the order of confirmation accordingly.
It is contended on behalf of the appellant that as no applicationwas made under section 282 of the Civil Procedure Code to setaside the sale, the Court was bound under section 283 to confirmthe sale, as it, irnfact, had done. But I am not convinced that thelhands of the Court are tied in this ^tanner if, in fact, the decree inexecution of whioh the sale took place has itself been set aside. Theproviso to section 283 requires the Court to stay its hand if thejudgment debt is found to have been satisfied at the time of theissue of the writ of execution. That proviso does not,, of course,apply to the circumstances of this case, but I thfafc that it isindicative of the spirit of the law with regard to sales in pursuance
( 312 )
1922. of a decree now no longer existent. I cannot accept the alignmentDb sIwaxo ***** exe01I^0li proceedings stop with the execution sale. In myj. opinion the confirmation of a sale is part of the execution proceed-il&iftiffnan^ a salo is not complete until it is confirmed. The provision
Menika section 290 for the Fiscal going into and retaining possessionof the property sold until confirmation of the sale, and the othermatters provided for in Chapter XXTT. on “ Execution ” likewisehave regard to the duties of the Court in respect of the due andcomplete execution of its own decree. In this connection section289 is noticeable, for it provides that the execution-debtor shallnot be divested of his title by virtue of the sale until confirmationof the sale and the execution of the Fiscal’s conveyance. Any actdone by the Court for divesting him of his title, such as the confir-mation of the sale, is surely part of the execution proceedings.It is not necessary to discuss the effect of those provisions furtherin the present case, but I have no doubt that the confirmation ofa sale is something done in the course of execution. This beingso, it follows that if at that stage there is no decree to executethe Court’s power to go on with, the execution proceedings ceasesalso. This matter was considered in two local cases, namely,Idroos Lebbe v. Mira Lebbe* and Be Mel v. Dharmaralne? Thesecond of these cases is on all fours with the present case. Therealso the ;decree had been set aside after the sale but before itsconfirmation, and it was held that an order confirming the salewas rightly vacated on the application of the judgment-debtor.Layard G.J. observed : “ A sale under a decree is incomplete untilconfirmation by the Court, and the Court’s power to confirm aFiscal’s sale is dependent on the sale being held in pursuance ofa decree. It is the existence of a valid decree which gives theCourt jurisdiction to act.” Wendt J., whose opinion on a pointof practice is specially valuable, also said: “ The true principleappears to me to be that the confirmation of the sale is a step in theexecution of the decree which the Court has no jurisdiction to takeif the decree no longer exists.” Both the learned Judges approvedthe decision of Lawrie J. in IdroosLebbe v. Mira Lebbe (supra). Thearguments addressed to them are similar to those addressed to usnow. For instance, it has been sought to get over the authorityof the decision in Idroos Lebbe v. Mira Lebbe (supra) by suggesting that'J*awrie J. had mistakenly followed two Indian decisions, and hadfailed to note that section 316 of the Indian Code, which providesfor the Court granting a certificate of sale to the purchaser whenthe sale has become absolute by confirmation, has the proviso:“ Provided that the decree under which the sale took place wasstill subsisting at that date,” whereas our Code has nothing corre-sponding to that* proviso. Layard C.J., in the first place, pointedthat section 316 had reference only to-the issue of a certificate
1 1 Tom. 6.
* (1903) 7 N. L. B. 274.
( 313 )
after the sale had been confirmed, and not to section 312 whichcorresponds to onr seotion 283; and in the second place he observedthat the two Indian decisions did not turn upon anything containedin seotion 316, but were independent rulings on the jurisdiction ofa Court to confirm a sale when the decree had been reversed since thesale. I am content to follow the local decisions above referred to,because, if I may say so, I am in entire accord with them. Thetwo Indian decisions are Mul Chand v. Makta1 and Basappa v.Dundaya* which, so far as I know, have never been over-ruled ordissented from. In further support of the argument on behalf ofthe appellant, the case Umish Chandra Doss v. SMk Narain Mandvl8was cited to the effect that the application by the purchaser toconfirm‘the sale was not a step in aid of execution, but that decisionwas expressly based on the ground that under the Indian Codeno application for confirmation was necessary, a point on whichour Code differs from the Indian Code. It is contended, however,that the position of a stranger who purchases is different from thatof the execution-creditor who purchases under his own writ. Butin every case an auction purchaser undertakes a certain risk, andin Basappa v. Dundaya (supra) and Doya Moyi v. Sarat Chunder*it was held that the purchaser must satisfy himself that there wasa subsisting decree before he applied for confirmation. The judg-ment of the Privy Council in Zaimvlabdeen v. Muhammed 5 has,however, been cited as an authority to the contrary. There theirLordships, no doubt, observed generally that there was a distinction•between bona fide purchasers who were no parties to the decreeand the decree-holders themselves, and that such purchasers hadnothing to do further 'than to look to the decree and the order ofsale. But the circumstances were peculiar. It is not a case inwhich the decree had been absolutely reversed, but a case in whichthe decree had been modified as to amount, the. effect of whichwas that the proceeds of a previous sale were sufficient t6 satisfythe modified decree. I think the judgment of the Privy Councilmust be taken to apply to the special circumstances of that caseand not to extend further. Indeed, the only issue was whetherthe sale should be set aside on the ground of the subsequent modi:ficationof thedecree. The principle meant to be enforced; I think,is that which was laid down by the Privy Council in Rewa Maptonv. Ram Kiahm Singh 6 as follows: *' If the Court has jurisdiction,a purchaser is no more hound to inquire into the correctness of the'execution than he is as to the correctness of the judgment uponwhich the execution issues.” If-the decree is wholly reversed
and the Court has nothing to execute, there is no jurisdiction in theCourt to proceed with the execution or to confirm the sale, which,
*L L. B. 10 AU, 83.* I. L. R. 26,Oal. 178.
1. L. B. 2 Bom. OHO.* j. L. R.'IO AIL 60.
I. L. B. 31 CaL 1011.*L.R 131. A. 106.
1932.
Da Samp axoJ.
Abdullav. Meniha
1922.
Db SaufavoJ.
AbduQa«. Menika
( 314 )
according to what has been stated above, is I part of the executionproceedings. Moreover, the case which the Privy Council decidedWas a separate suit brought to set aside the sale, and the PrivyCouncil did not deal with, and had no occasion to deal with, thespecific question whether the Court should confirm a sale after thedecree itself has been wholly set aside.
The remaining point is whether the fact that the execution-creditor has drawn the proceeds sale paid into Court by theappellant disentitles the defendants to the relief granted to them bythe Court. I have already indicated my opinion that the Courtought not to have allowed the money to be drawn before the salewas confirmed. In any oase, the. circumstance of the money beingpaid out of Court does not, in my opinion, affect the defendants.The appellant had his remedy to reclaim the money from theexecution-creditor, and if, on account of the lapse 6f time, he nowfinds himself unable to pursue it, he is himself to. blame for his wantof diligence. The amount was only Rs. 95. If, as alleged, theappellant has since 1911 been in possession of the lands, he musthave recouped himself for the money paid, and there is no specialequitable consideration sufficient to induce the Court to look uponhis case with favour.
In my opinion the appeal should be dismissed, with costs.
Bertram C.J.—
1 agree with the judgment of my brother De Sampayo. As thejudgment is executed by sale, and as the sale is not complete tillconfirmation, I fail to see how confirmation, at whosesoever instanceapplied for, can be other than a step in the execution. I thinkthat by the nature of things a Court is precluded from confirminga sale held in execution of a decree which has since ceased to exist.
Appeal dismissed.
♦