ORDER
1. This revision petition is directed against the judgment and Order of the IX Additional City Civil Judge, Bangalore dated 27th July, 1996, rejecting the petitioners’ application for setting aside the sale which prime facie appears, application was given the title to be under Order 21, Rule 90 read with Section 151, Civil Procedure Code.
It appears, the Counsel had also forgotten to mention Section 47 of the Civil Procedure Code, but the objections that were taken, as can be said to be one covered by Section 47, Civil Procedure Code.
2. The facts of the case in brief are that: A suit for partition was filed bearing No. O.S. 9706 of 1980, by the plaintiff-respondent 1 and for separate possession of joint-family property, the suit came to be decreed-allctting respective shares to each of the parties. Thereafter, an application was filed for drawing up of the final decree and the case was taken up for drawing a final decree, in accordance with the preliminary decree. At that stage, the present revision petitioners, that is defendants 1 and 2 moved an application before the Court to the effect that the suit property is not divisible, because of its smallness and suggested for selling of the property among the heirs, if not feasible to sell it in public auction and to distribute the sale proceeds among the heirs.
As appears from the judgment, that the Court appointed a Commissioner to conduct the sale of the suit property and suit property appears
to have been auctioned and sold for a sum of Rs. 2,15,500/- and the Commissioner submitted his report to the Court below on 19-6-1991. It may be mentioned here that the Commissioner had conducted the sale on 5th May, 1991.
3. When the Commissioner’s report was submitted on 19-6-1991, the case was posted for objections on Commissioner’s report and sale was confirmed on 27-6-1991. The certificate was issued to the Auction Purchaser on 9-7-1991. It may be mentioned here that the petitioners had filed a revision in Civil Revision Petition No. 3567 of 1991 on 26-7-1991 with the prayer for setting aside the sale and this Court by its judgment dated 28th of November, 1994, dismissed the revision taking the view that remedy available to the parties was under Order 21, Rule 90, Civil Procedure Code reserving that liberty to the applicants to move an application under that order subject to law of limitation.
Thereafter the revision petitioners filed the application under Order 21, Rule 90 read with Section 151, Civil Procedure Code for setting aside the sale on the ground of irregularity committed during the sale.
4. The learned Court below opined that the revision was filed beyond the period of limitation provided for moving an application for setting sale and, therefore when, according to the Trial Court, these petitioners kept silence till the date of confirmation of sale, that is 27-6-1991 and preferred to file revision on 27-6-1991 and the Court opined that, therefore the petitioners preferred Civil Revision Petition to overcome the limitation that had run against them and to show their bona fides in prosecuting the revision petitions and, as such opined that the explanation was not bona fide nor satisfactory, as to why the petitioners kept quiet till 27-6-1991. The Court, as such held that the application under Order 21, Rule 90, Civil Procedure Code, is being barred by limitation. It also held that the property was sold for Rs. 2,15,500/- and it cannot be said that it has resulted in substantial injustice to the applicants. The Court opined that, since the Commissioner was appointed by the Court for the purpose of selling the property, the question of auctioning property in the Court for accepting final bid does not arise at all. Making these observations, the Court below dismissed the application for setting aside the sale.
5. The defendants 1 and 2 having felt aggrieved have come before this Court by this revision under Section 115 of the Code of the Civil Procedure.
6. The learned Counsel for the petitioners contended that, really sale was no sale in the eye of law, as the sale proclamation did not comply with the requirements of Rule 139 of the Civil Court Rules i.e., the Karnataka Civil Rules of Practice, nor did the sale fulfil the requirements of Rule 138 of the Karnataka Civil Rules of Practice.
He further contended that, it has been held by the Court that sale conducted and held in violation of Rules 138 and 139 of the Karnataka Civil Rules of Practice is illegal, null and void and it should have been set aside, no doubt he also indicated that such an objection was raised in
the grounds of objections before the Court below. Really the tenor of the application indicated, as if the application was made, as one under Section 47 read with Section 151 and Order 21, Rule 90, Civil Procedure Code, even though the application gives that it comes under different cover of different provision, but the fact that wrong provision was mentioned that it will not affect the jurisdiction of the Court, any way the Court below has dismissed the application, as time-barred.
7. The auction was held on 5-5-1991. The sale was confirmed on 27-6-1991. Under Part III of the Schedule of the Limitation Act, Article 127 prescribes 60 days period from the date of sale, for moving the Court for setting aside the sale in execution of decree including any such application of judgment-debtor. When the law gives a particular period to move application for setting aside sale, the sale could not be confirmed before the expiry of the period of sixty days from 5-5-1991, on which the sale was held. It means, the sale could not be confirmed till 4th of July, 1991, as till 4th of July, 1991, it was open to the judgment-debtors or to the defendants in that case to have applied for setting aside of the sale.
8. It has to be taken note of that, in cases, where a decree is passed for partition and the property to be partitioned is such that, it cannot be divided into shares, as the shares are required to be divided, then the Court may order for it being sold and its proceeds may be distributed amongst the claimants.
9. The Partition Act, 1893 deals with such a situation, Section 2 of the Partition Act confers the power to the Court to order sale, instead of division of the property in a partition suit if the condition mentioned in Section 2 are fulfilled. In this Act, there are also provisions that any of the shareholders may also apply to purchase the shares of others, if they so desire.
10. Section 7 of the Partition Act, 1893 further provides for the mode of partition and procedure to be followed in case of sale under the Act. Section 7 reads as under:
“7. Procedure to be followed in case of sales.–Save as hereinbefore provided, when any property is directed to be sold under this Act, the following procedure shall, as far as practicable, be adopted, namely.-
(a) if the property be sold under a decree or order of the High Court of Calcutta, Madras or Bombay in the exercise of its original jurisdiction, the procedure of such Court in its original civil jurisdiction for the sale of property by the Registrar;
(b) if the property be sold under a decree or order of any other Court, such procedure as the High Court may from time to time by rules prescribe in this behalf, and until such rules are made, the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees”.
A reading of clause (b) of Section 7 of the Partition Act, 1893 clearly reveals that, where the property is sold under the decree or order of any Court other than the High Courts of Calcutta, Madras and Bombay,
then the procedure as, from time to time being prescribed by the rules made by the High Court of the State in this behalf shall be followed, and until, such rules are made, procedure prescribed in the Code of Civil Procedure in respect of the sales in execution of decrees is to be followed.
11. After the sale is conducted under the Civil Procedure Code, a person may file objections under Section 47 or he may file under Order 21, Rule 89/90, as the case may be and at times some lawyers do that, if the objections cover various types of grounds which are covered by different sections, they will add all the relevant provisions and sections. The law also prescribes the time within which the objections may be filed against the sale or the period during which application for setting aside sale can be moved under the Code.
The application for cancellation of sale, as mentioned earlier, under the Limitation Act vide Article 127, shall have to be and can be made within 60 days from the date of sale. That is within sixty days from the date of sale or auction being held and concluded, the judgment-debtor or any person who is a party to the suit can and has a right to apply for cancellation or setting aside of sale.
12. Now 60 days period would have expired on 4th of July, 1991, but the sale appears to have been confirmed on 27th of June, 1991, that is, before the expiry of the sixty days period during which a party is provided and is entitled to file the objections to sale and apply for setting aside of the sale. By confirming the sale thus, on 27-6-1991, the Court has deprived the party of his right to move for setting aside of the sale. This might have been a circumstance, in such a case, which had compelled the revision petitioner to have filed the revision before this Court, namely Civil Revision Petition No. 3567 of 1991 which revision was filed on 27-6-1991. Further when Order 21, Rule 92 provides that when no application for setting aside sale has been made or when one so made has been dismissed or rejected, the sale has to be confirmed and sale shall become absolute. The expression where no application is made used, in Order 21, Rule 92 means that when time for moving application for setting aside sale has expired and no application has been made, then and there only, Court shall make order confirming the sale and then sale shall become absolute. An order of confirmation of sale, before the expiry of the period prescribed for application to set aside sale, cannot be made by Court on the ground that no such application has been made will be invalid and cannot be made.
13. It cannot be said that the petitioner had mala fidely filed the revision to so move himself from the clutches of the limitation, if the objection for setting aside sale could not be filed. Blame can also go to the Court which has passed an order confirming the sale, even before expiry of the period prescribed for filing objection and application for setting aside the sale.
14. The revision was admitted and no doubt looking bona fides the Court avoided to hear at length and, while dismissing earlier revision the Court observed and gave opportunity to applicant-judgment-debtor
to move for setting aside the sale either under Order 21, Kule 90 ot the Code and under proper provision as advised.
15. The Court passed the order on 28-11-1994 disposing of the earlier revision. The revision petitioner filed the objection application under Order 21 or 90 and Section 151, Civil Procedure Code on 5th December, 1994, so it cannot be said that the present revision petitioner was not entitled to get the benefit of Section 5 of the limitation Act read with the spirit and letter of Section 14 of the Limitation Act. Even when the application for condonation of delay, moved by the revision petitioners, has been illegally rejected, as the Court below did not apply the mind and take into consideration of the provisions of Sections 5 and 14 as well as the fact that the Court itself had deprived the applicants-revision petitioners from filing the objection by confirming the sale before 60 days period, provided under law, did expire, in such a case, dismissal of the condonation of delay application on the ground not warranted by law and on erroneous assumptions is illegal and amounts to illegal refusal to exercise jurisdiction vested in it.
16. The learned Counsel contended that sale has been confirmed, money has been paid, but confirmation when it is illegal and against the provision of law, then it cannot be ineffective under the provision of law Order 21, Rule 92.
17. No doubt the contention has been made by the revision petitioner that sale has been in breach of Rule 138 of the Karnataka Rules of Civil Practice which per se require examination and examination of the sale proclamation; whether in the sale proclamation the date had been specified or not on which the final bid had to be offered, if it had not been prescribed and mentioned and final bid did take place before the Presiding Officer, then definitely the sale would be held to be null and void, in view of the decisions of this Court in K.P. Krishnappa v B. Gangappa and Others and Annappa Reddy v S. Suresh. But this question has to be decided by the Court below after examining the record of sale and bid taken place.
18. The revision is allowed. The impugned order has to be set aside. If the sale has been held in breach of Rules 138 and 139 of the Civil Rules of Practice or Order 21, Rule 92 read with Article 127 of the Limitation Act and confirmation of sale is itself held to be null and void, as it would be amounting to no sale and there is no question of injury being shown at that stage.
Accordingly keeping all these matters open, I remand back the matter for decision on the application for setting aside the sale by the Court below in the light of the provisions of law and the facts of the case. Revision is allowed with cost.
Costs is assessed at Rs. 550/-.