Civil Revision No. 682 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 682 of 2006 (O&M) Date of decision: 09.10.2009 Om Parkash Bhatia ....Petitioner Versus Punjab and Sindh Bank, Hall Bazar, Chowk Phawara, Amritsar, and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. B.R. Mahajan, Advocate, for the petitioner. None for the respondents. ***** VINOD K. SHARMA, J (ORAL) CM No. 2663-CII of 2006 Allowed. The applicant-petitioner is exempted from filing certified copy of order of the trial Court. CR No. 682 of 2006 This revision petition is directed against the order dated 19.10.2005, passed by the learned District Judge, Amritsar, vide which the appeal filed by the petitioner was ordered to be dismissed as not maintainable. A decree was passed in favour of the Punjab and Sindh Bank, Hall Bazar, Chowk Phawara, Amritsar, against Birinder Singh, Bikram Singh and Manbir Singh Dhillon for recovery of Rs.3,43,598/- (Rupees three lac forty three thousand five hundred ninety eight only) along with Civil Revision No. 682 of 2006 (O&M) -2- interest @ 15 ½% per annum. The decree-holder filed application for execution of the decree, and the property/plot of the judgment-debtors was attached and sold to the petitioner in court auction being the highest bidder. The petitioner deposited 25% of the auction-money at the spot, and balance was deposited on 28.7.2001. The execution application was dismissed on the statement of the counsel for the decree-holder, that the matter stood compromised and that the decretal amount stood adjusted. The judgment-debtor thereafter moved an application for setting aside the sale proceedings and prayed for release of his property from attachment. The petitioner appeared and contested the application. The petitioner also moved an independent application under Order 21 Rules 110 and 101 of the Code of Civil Procedure for confirmation of the sale in his favour. The application was contested by the judgment-debtor. The learned Executing Court accepted the application moved by the judgment-debtor under Order 21 Rule 90 read with Sections 47 and 151 of the Code of Civil Procedure, and ordered the sale to be set aside. The amount deposited by the petitioner was ordered to be refunded to him. The application moved by the petitioner for confirmation of sale was also dismissed. The petitioner preferred an appeal against the order vide which the application moved under Order 21 Rule 90 of the Code of Civil Procedure was accepted. The learned appellate Court held the appeal to be not Civil Revision No. 682 of 2006 (O&M) -3- competent by recording the following findings: - “7. These arguments of the learned counsel for the appellant/auction purchaser are devoid of force. It cannot be said that the order has been passed by the learned trial Court under Order XXI Rule 92 CPC. According to that order, “Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute.” In the present case, the application was made under Rule 90 and the same was allowed. Therefore, there is no question of the application of order XXI Rule 92 CPC to the facts of the present case. No doubt, the application by the appellant/auction purchaser before the trial court purported to have been filed under order XXI Rule 100 and 101, but a wrong provision was quoted in the heading of the application. No such prayer under those rules was made in the application. Those rules deal with the delivery of possession of the property and there was no prayer of relief, claimed regarding possession of the property and it was only regarding the confirmation of the sale and the issuance of the sale certificate. So, virtually, this application was nothing but a reply to the application, filed by respondent No.1/JD under XXI Rule 90 CPC. So, it is to be taken both the orders under appeal were passed under order XXI Rule 90 CPC. 8. The interpretation, which is being given by the learned counsel for the appellant/auction purchaser to order XLIII Rule (i)(j) is not correct. Appeal lies only against an order, passed under order XXI Rule 72 or order XXI Rule 92, setting aside or refusing to set aside a sale. The words “setting aside” qualifies the order, passed under rule 72 and the words “refusing to set aside a sale” qualifies the order passed under rule 92. Those Civil Revision No. 682 of 2006 (O&M) -4- are not be read independently. The appeal is competent only against the order, passed under rule 72 and Rule 92 and not against the order passed under rule 90 of the CPC. 9. It is well settled law that right of appeal being creature of special enactment, one must look only to the enactment to the extent and manner in which it is to be exercised. The right to appeal against an order passed under Rule 90 CPC has not been provided and as such, this appeal is not competent.” On consideration, I find that the impugned order cannot be sustained. The learned appellate Court wrongly held the impugned order to be one under Order 21 Rule 90 of the Code of Civil Procedure and not under Order 21 Rule 92 of the Code of Civil Procedure, by ignoring sub- rule 2 of Rule 92 Order 21. The order rejecting or accepting the application is an order passed under Order 21 Rule 92. The appeal is competent against the order. Rule 92 of Order 21 of the Code of Civil Procedure reads as under: - “92. Sale when to become absolute or be set aside. - (1) Where no application is made under rule 89, rule 90 or 91, or where such application is made and disallowed, the Court shall make an 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 [sixty days] Civil Revision No. 682 of 2006 (O&M) -5- 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 arithmetical 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: [Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.] (3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made. [(4) Where a third party challenges the judgment- debtor's title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary party to the suit. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered.]” In view of the finding that the appeal against the impugned order was competent, this revision is allowed, the impugned order is set aside and the case is remanded back to the learned appellate Court to dispose of the appeal in accordance with law. (Vinod K. Sharma) Judge October 09, 2009 R.S.