@JUDGMENTTAG-ORDER
K. Govindarajan, J.@mdashThe decree-holder aggrieved by the order dated 16.12.1992 passed in EANo. 188/1990 in E.P.No. 54/1988 in C.S.No. 58/1975, has filed the above Appeal.
2. The appellant filed a suit in C.S.No. 58/1975 to recover the mortgage amount and obtained a preliminary decree. Subsequently, on 13.10.1977 a final decree was passed. To execute the said decree, the appellant filed E.P.No. 54/1988 to sell the property. On 14.3.1990, a Court auction sale was held and the 1st respondent was the successful bidder and he deposited the entire amount on the same day including the poundage amount of Rs. 13,620 on 11.6.1990. The said sale was confirmed and a sale certificate was also issued by the Court to the 1st respondent on 5.7.1990. Subsequently, on the same day, the 1st respondent filed an Application in E.A.No. 174/1990 for delivery of possession of the schedule mentioned property. Though delivery warrant was issued to the bailiff to take possession on 12.7.1990, he was informed that the suit property is not the property of the judgment-debtors. So the Court auction purchaser, 1st respondent filed EANo. 188/1990, under Order 21, Rules 90, 91 and 93 read with Section 47 of Code of Civil Procedure, to set aside the Court auction sale dated 14.3.1990 as illegal, vitiated by fraud as the judgment-debtors have no saleable interest over the said property on the date of sale and to refund the sale price to the 1st respondent along with poundage and the amount paid towards non-judicial stamp value for the sale certificate.
3. The appellant filed a counter denying that the judgment-debtors have no saleable interest in the property in question. He also denied that the officers of the bank had played fraud on the auction purchaser. It is stated that the Application is barred by limitation under Article 127 of the Limitation Act.
4. The Court below accepting the case of the 1st respondent herein found that the burden is on the decree holder to prove that the judgment debtors are having right in the property in question, and the decree holder-appellant herein has not discharged the said burden, and so the auction held on 14.3.1990 has to be set aside and on the basis of the said finding the Court below set aside the auction but rejected the 1st respondent''s request to refund the poundage amount of Rs. 13,620 and the cost of the stamp paper value of Rs. 36,240 as he has to take necessary action to recover the amount in accordance with law. Aggrieved against the same the appellant has filed the above Appeal.
5. Learned counsel appearing for the appellant submitted before us that the Court below has wrongly placed the burden on the appellant to prove the title of the property in question, after the auction was held and confirmed. He also submitted that the Application is barred by limitation and the dispute is only with respect to the portion of a property and not with respect to the entire property and so the Application is not maintainable. It is his further submission that the Application under Order 21, Rule 91 of the CPC cannot be maintained, after confirmation of the sale of the property.
6. Learned Senior Counsel appearing for the respondents submitted that since fraud was played on the auction purchaser, the Application is maintainable u/s 47 of the CPC and the case of the appellant that the Application is barred by limitation cannot be sustained.
7. Though the learned counsel for the appellant submitted that the dispute is only with respect to only a portion of the property and not the entire property and so the present Application filed by the 1st respondent cannot be sustained, from the pleadings, we are not able to see any material to substantiate such a contention. It is the specific case of the 1st respondent that the judgment debtors are not having any saleable interest on the entire property and even in the counter filed on behalf of the appellant in E.A. No. 188/1990, such a plea was not raised. In the absence of any pleading to the effect that the dispute is only with respect to a portion of the property, the submission of the learned counsel that the Application is not maintainable as the dispute is only with respect to a portion of the property cannot be countenanced.
8. Though the Application was also filed u/s 47 of the Code of Civil Procedure, on the basis that the appellant played fraud on the 1st respondent decree holder, as rightly found by the Court below, the same has not been established. Even before us, no acceptable material is pointed out to sustain the said submission. So the said case of the Court auction purchaser-1st respondent cannot be accepted. Equally, the respondents cannot sustain the Application u/s 47 of the CPC to set aside the sale as specific provision, viz., Order 21, Rule 9 of the Code is available.
9. To file an Application under Order 21, Rule 91 of the Code, limitation is contemplated under Article 127 of the Limitation Act. In the present case, though the sale was held on 14.3.1990 and confirmed on 11.6.1990, the Application was filed only on 24.7.1990. As contemplated under Article 127 of the Limitation Act, the said Application should have been filed within 60 days from the date of sale. But, in this case, admittedly, the Application was filed, after four months.
10. While considering the period of limitation to file an Application under Order 21, Rule 91 of the Code, the Full Bench of this Court in the decision In Veeraraghavayya v. Vankataraghavareddi AIR 1948 Mad. 226, found that Article 166 of the Limitation Act (Old Act) being the relevant Article and the period of limitation is only 30 days from the date of sale.
11. The Division Bench of the Allahabad High Court also in the decision in
12. So, in view of the settled principles of law stated above, the Application filed by the Court auction purchaser in E.A.No. 188/1990 cannot be sustained as it is barred by limitation, since the said Application was not filed within 60 days from the date of sale, namely, 14.3.1990.
13. The auction purchaser takes the risk and bear the loss if it is found that the property sold does not belong to the judgment-debtor. Merely because the judgment debtor has no saleable interest in the property which was sold in the Court auction sale, it cannot be said that it is void insofar as the purchaser is concerned. But, Order 21, Rule 91 of the Code is an exception to the general principle which enables the Court auction purchaser to approach the Court to set aside the sale on the ground that the judgment-debtor has no saleable interest. But such Application cannot be sustained after confirmation is made. In the present case, the sale was confirmed on 11.6.1990. Even if the judgment-debtors had no title to the property in question, the remedy could be availed of, before the sale was confirmed. If want of title is discovered after the Court auction sale is confirmed, then the Court auction purchaser has no remedy under the Civil Procedure Code. Such a view has been taken by the learned Judge of this Court in the decision In Butchi Raddi v. Suryaprakasa Rao 57 LW 541.
14. The Division Bench of the Allahabad High Court in the decision in
15. In view of the foregoing discussion, the order dated 16.12.1992 passed by the Court below setting aside the sale at the instance of the 1st respondent-Court auction purchaser cannot be sustained. Hence the same is set aside and this Appeal is allowed. No costs.
