ORDER
1. By order dated 18-2-1994 this revision petition was admitted as it was felt that the matter requires consideration and directed to be posted for final hearing on 8-3-1994. The question of very maintainability of the revision petition has been kept alive at the request of the learned counsel for respondent-1.
2. When the petition was taken up for hearing, the learned counsel for respondent-1': raised a preliminary objection as to the maintainability of the revision petition, and requested the court to decide the question of maintainability of the petition first, before hearing on merits. Sri Manjunath the learned counsel appearing for the petitioner; has.no objections for deciding the question of maintainability of the revision petition first; Accordingly, the petition was first heard on the question of maintainability by postponing the hearing on merits to a future date, if the petition is held, to be maintainable.
3. That, having been aggrieved by the order dated 10-2-1994, passed by the learned XV Additional City Civil Judge, Bangalore, dismissing her application, LA. No. II, filed under Order XXI, Rule 90, C.P.C. the first judgment-debtor in Ex. Case No. 430/ 89 has presented this petition.
4. For deciding the question as regardsthe maintainability of this revision petition,there is no need to state the facts. Hence factsexcepting those which are absolutely necessary are not stated.
5. As aforesaid the petitioner is the first judgment-debtor, and the first and second respondents are the decree-holder and second judgment-debtor, respectively, in the execution case. The third respondent is the auction-purchaser.
6. The decree-holder-Bank having obtained a decree in O.S. 2814 of 1983, against the judgment-debtor, sought for attachment and sale of the property of the petitioner in execution of the said decree. The learned City Civil Judge after complying with the provisions prescribed for sale of the immoveable property in execution of a decree, as prescribed in Order XXI, C.P.C. is stated to have passed an order to sell the property and accordingly auction was held on 30-1-1992 at which the third respondent is stated to have purchased the property being the highest bidder. That, on 4-3-1992, the petitioner filed an application I. A. No. II, under Order XXI, Rule 90, C.P.C. to set aside the sale. One Vijayashri & Co., stated to be another decree-holder has also filed a similar application, I.A.I., under the same provision for the same relief. The learned City Civil Judge heard both the I. As. together and passed a common order rejecting both the applications, by his order dated 10-2-1994. Hence this petition only by the petitioner.
7. Sri D. L. N. Rao, the learned counsel appearing for respondent-1, submits that a revision does not lie against any order against which an appeal is allowed, as per Section 115(2), C.P.C., and the order under revision being an appealable order under the provisions of Order, XVIII. Rule 1(j), C.P.C., this revision petition is not maintainable.
8. Sri D.L.N. Rao, elaborating his arguments would submit that the petitioner filed an application under Order XXI, Rule 90, C.P.C. to set aside the sale and the learned City Civil Judge refused to set aside the sale and rejected her application. As per Order XVIII, Rule 1(j), C.P.C. an appeal shall lie from an order under Rule 72 or 92 of Order XXI setting aside or refusing to set aside a sale; hence the revision petition is not maintainable.
9. Per contra, Sri B. S. Manjunath, the learned counsel for the petitioner, does not dispute the proposition of law as stated by Sri D.L.N. Rao; however he contends that the order under revision is not an order made either under Rule 72 or under Rule 92 of Order XXI, C.P.C. but an order under Rule 90 of Order XXI, C.P.C. and as no appeal lies from an order under Rule 90 of Order XXI, C.P.C., revision is maintainable. Sri Manjunath, learned counsel, would further argue that Rule 92 of Order XXI deals only with confirmation of sale and not with the application filed under Rule 90 of Order XXI, C.P.C.
10. In view of the aforesaid contentions, in order to decide the question relating to the maintainability of this revision, it is necessary to find out, under which provision of Civil Procedure Code the order under revision has been made.
11. Order XVIII, C.P.C. deals with appeals from orders and Rule 1 of Order XVIII gives the particulars of the orders from which an appeal shall lie. Rule 1(j) of Order XV11I, C.P.C. which is the relevant provision for our purpose reads as follows:
'R.1, Appeals from Orders: An appeal shall lie from the following orders under the provisions of Section 104, namely -
XXX XXX XXX XXX (j) an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale.'
Order XXI, Rule 72 and Rule 92, C.P.C. read as follows:
'O. XXI, R. 72. Decree-holder not to bid for or buy property without permission:
(1) No holder of a decree in execution of which property is sold shall without the express permission of the Court, bid for or purchase the property;
(2) Where decree-holder purchases, amount of decree may be taken as payment. -- Where a decree-holder purchases with such permission, the purchase money and the amount due on the decree may, subject to provisions of Section 73, be set off against one another and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.
(3) Where a decree-holder purchases by himself of through another person, without such permission, the court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale by order set aside the sale; and any deficiency of price which may happen on the resale and all expenses attending it, shall be paid by the decree-holder. XXX XXX XXX XXX
Rule 92. Sale when to become absolute or be set aside:
(1) Where no application is made under Rule 89, Rule 90 or Rule 91 or where such 'application is made ard disallowed, the Court shall make on order confirming the sale, and thereupon the sale shall become absolute.
Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.
(2) Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of sale or in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or mathematical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale.
Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.
(other Sub-Rules of Rule 92 are not relevant)
Rule 89, 90 and 91 of Order XXI, C.P.C. prescribe the grounds under which the sate of an immoveable property sold in execution of a decree may be set aside. Under Rule 89 of Order XXI, C.P.C. either the judgment-debtor or any person deriving title from the judgment-debtor or any person holding an interest in the property or whose interests are substantially affected may apply to the court to have the sale set aside on depositing a sum equal to 5% of the purchase money for being paid to the purchaser and the amount specified in the- proclamation of sale -for the recovery of which the sale as ordered, for being paid to the decree-holder. Under Rule 90 of Order XXI, C.P.C. the decree-holder, or the purchaser, or any other person entitled to share in rateable distribution of assets of whose interests are affected, may apply to the court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. Under Rule 91 of Order XXI, C.P.C. the auction purchaser at any such sale in execution of a decree may apply to the Court to set aside' on the ground that the judgment-debtor has no saleable interest in the property sold.
12. Sri Manjunath, the learned counsel submits that, Rule 92 of Order XXI, C.P.C. deals with confirmation of sale and when the sale would become absolute; it does not deal with the consideration of the applications filed either under Rule 89 or Rule 90 or Rule 91. It specifically employs the expression 'where such application made and disallowed' which is referable to an act done anterior to Rule 92. Rule 90 of Order XXI is a self-contained provision; any application filed under Rule 90 if disposed of, it must be deemed to have been disposed of under Rule 90 only in view of the expression employed in Rule 92. He therefore vehemently contends thai the order under revision is not an order under Rule 92 of Order XXI, C.P.C. and hence appeals shall not lie from (he order under revision.
13. From the reading of Rule 92 of Order XXI, C.P.C. it is not possible to accept the contention of Sri Manjunath, the learned counsel for the petitioner. As stated earlier Rules 89, 90 and 91 prescribe the grounds 10 file an application to set aside the sale of an immoveable property sold 'in execution of a decree. They do not provide for disposal of applications filed, to set aside the sale, as has been provided under sub-rule (3) of Rule 72 for disposal of an application filed, to set aside sale for violation of sub-rule (1) of Rule 72 of Order XXI. Sub-rule (3) of Rule 72 of Order XXI, C.P.C. empowers the Court to which an application is made either by judgment-debtor or any person whose interests are affected to set aside the sale, if the decree-holder purchases the property by himself or through another person without the express permission of the Court. Such a provision is not available in any of the rule viz. 89, 90 or 91. Rule 90 of Order XXI is therefore not a self contained provision as contended by Sri Manjunath. Rule 92 of Order XXI, no doubt deals with confirmation of sale, but it is only after the disposal of the application filed either under Rule 89 or Rule 90 or Rule 91. The Court therefore has two distinct powers; one, either to allow or to disallow an application filed under any of the rules mentioned therein, secondly to confirm the sale. Disallowing an application is nothing but refusal to set aside the sale. To disallow an application filed under Rule 90 of Order XXI the same shall be considered only under Route 92. The same is indicated in sub-rule (2) of Rule 92. in respect of an application made under Rule 89 of Order XXI, to set aside the sale on depositing the amounts prescribed thereunder. If it is to be held that the Court is empowered under Rule 92(2) of Order XXI, to make an order on an application filed under Rule 89. It is not possible to agree with the contention of Sri Manjunath, that the application filed under Rule 90, to which also reference is made in Rule 92, would be disposed of only under Rule 90 not under Rule 92 of Order XXI, C.P.C.
14. Sri Manjunath, the learned counsel for the petitioner, further submits that Order 43, Rule (1)(J) allows an appeal from an order made under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside the sale. By Rule 92, the Court shall make an order confirming the sale and in the absence of such an order confirming sale, the order under revision cannot be construed as an order attracted by Order XVIII, Rule 10), C.P.C. This contention of the learned counsel is also liable to be rejected, for Order XVIII, Rule 1(j) does not relate to an order made under Order XXI Rule 92, C.P.C. It relates only to an order 'setting aside or refusing to set aside sale' under Rule 92 of Order XXI, C.P.C. Hence the question whether the sale is confirmed or not has no relevance,
15. A Division Bench of Calcutta High Court in Ansarali v. Bhim Shankar Dutta; Tewari, : AIR1929Cal407 considering the question, whether when no formal order has been recorded confirming the sale and the application under Order XXI, Rule 90, C.P.C. has been dismissed for default for nonappearance of both the parties to the proceeding, the order of dismissal passed under those circumstances is open to appeal has held as follows:--
'In the present Code 0.43, R. 1(j) speaks of an order under R. 72 (with which we are not concerned) or R. 92, O. 21, setting aside or refusing to set aside a sale. It appears therefore that the words 'for conforming' which were to be found in S. 588, Cl. 16 have been dropped out. The obvious intention of the legislature was not to treat an order confirming a sale as one distinct in its essence from an order disallowing an application under Order 21, R. 90. This intention appears to be further clear from the fact that 0.21, R. 92, says that where no application is made under Rule'89, R.90 or R. 91 or where such an application is made and disallowed the Court shall make an order confirming the sale and thereupon the sale shall become absolute. It is the disallowing of the application made under 0.21, R. 90 which corresponds to the order refusing to set aside a sale within the meaning of O.41, R. 1, Cl. (j). The fact that a distinct order has not been recorded confirming the sale does not alter the character of the order disallowing an application under 0.21, R. 90 and it is this last mentioned order that is appealable by reason of the provisions of 0.43, R. 1 , Cl. (j).'
Nagpur Judicial Commissioners Court in Balakrishna v. S.M. Chitnavis, AIR 1932 Nagpur 14 considering the correctness of the Order of the Appellate Court that appeal would not lie under Order XVIII, Rule l(j), C.P.C. from an order'setting aside the sale, for default of the decree-holder has held as follows:
'I do not agree with the learned District Judge that O.43, R. 1(j) is not applicable. An application under 0. 21, R. 90, had been made and the provisions of O.21, R.92, make it necessary that this application should be allowed or disallowed. It is quite clear that the executing Court would not have passed the order which it did pass had there been no application to set aside the sale. The order then must be considered to be an order setting aside the sale passed under the provisions of O. 21, R. 92, and was subject to appeals.'
The Madras High Court in V.A. Narayana Raja v. O. RM. MSV.M. Meyappa Chittiar, AIR 1975 Madras 36 considering the question of maintainability of the appeal against an order rejecting an application filed under Rule 105(1) of Order 21, C.P.C. for restoration of the application under Order XXI, R. 90, C.P.C. has held as follows (at p. 39 of AIR):
'A reading of this provision clearly shows that what is required for an appeal being preferred against a rejection of an application under sub-rule (1) of Rule 105 of Order 21. Civil P.C. is that the main application referred to in sub-rule (1) of Rule 104 of Order 21, Civil P.C. is an appealable order. Undoubtedly an order of dismissal of an application under Order 21, Rule 90, Civil P.C. is an appealable one order under Order 43, Rule 1(j). Therefore, the apellant is certainly entitled to file an appeal as against the dismissal of E.A. 716 of 1969, which was filed under Order 21, Rule 105, Civil P.C. Nowhere it is stated in Order 43, Rule 1(jj) that where an application under Rule 105 had been dismissed for default, it was not open to the aggrieved party to file an appeal. In such circumstances, the second objection raised by the learned counsel for the respondents is also clearly untenable.'
16. In view of the aforesaid discussion, it, is clear that the order rejecting I.A. No. II filed by the petitioner under Rule 90 of Order XXI, C.P.C. must be considered to be an order made under Rule 92 of Order XXI, C.P.C. from which an appeal shall lie under Order XLIII, Rule 1(j), C.P.C. The revision petition is therefore not maintainable.
17. Sri Manjunath, the learned counsel for the petitioner, submits that as the revision petition has been admitted on the ground that it requires consideration, the petition deserved to be considered on merits, notwithstanding the finding' on the question of maintainability. He placed reliance on a decision of the Supreme Court in Hukumchand Amolikchand Longde v. Madhava Balaji Potdar, : AIR1983SC540 . The principle laid down by the Supreme Court in the aforesaid case cannot be extended to this case as the facts are distinguishable. That was a case coming under the provisions of the Karnataka Rent Control Act, wherein the Court had jurisdiction; whereas this is a case of want of jurisdiction, as an appeal is allowed from the order under revision.
18. Sri Manjunath, the learned counsel for the petitioner, submits that, if this petition is held to be not maintainable,, the petitioner may be permitted to convert this petition to an appeal. I do not think such a permission is permissible in law. Revision cannot be permitted to be converted into an appeal. Hence the same is rejected.
19. In the result, the revision petition is liable to be dismissed as not maintainable and accordingly dismissed, leaving liberty to the petitioner to prefer an appeal, if she is so advised. In the circumstances of the case, there is no order as to costs.
20. Petition dismissed.