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Report No. 27

Order XXI, rule 59

This deals with postponement of sale pending inquiry into objections. Following changes have been proposed:-

(1) Where immovable property is advertised for sale, the court can, at present, postpone the sale pending investigation of a claim or objection to attachment.

A recommendation was made in the Fourteenth Report1-2, that the sale should not be postponed, but the court should have a discretion to direct that it shall not be confirmed, until decision of the claim or objection. This has been carried out, but with an important modification. Existing power to postpone the sale is preserved (though the Fourteenth Report contemplated its deletion), as useful in certain cases.

(2) A provision has been added to the effect that where the sale has already taken place at the time of the claim or objection, the claim or objection shall not be entertained. This will resolve the conflict of decisions on the question3-4 whether an objection can be investigated in such cases.

(3) Instead of .investigation, the word "adjudication" is used, as it is intended that the inquiry should cover questions of title also.

1. 14th Report, Vol. I.

As regards movables, the present position is retained, as under Order 21, rule 77, the sale becomes absolute immediately.

2. See also the Civil Justice Committee (1925) Report, p. 392, para. 25.

3. The answer is "No" according to some High Courts. See AIR 1926 Cal 468 and AIR 1937 Cal 390; AIR 1942 Born 263; AIR 1953 MB 264. For the contrary 'view, see AIR 1958 Mys 140;. AIR 1931 Mad 782; AIR 1940 Nag 7.

4. Cf. the Allahabad Amendment interpreted in Firm Tundi Ram v. Ghur Lal, AIR 1939 All 598.

Order XXI, rule 59-Postponing confirmation of the sale

In the draft Report circulated for comments, a provision had been proposed under which, while the confirmation of the sale itself could be postponed, the sale itself was to be held. One of the comments received on the draft Report was, that if the sale is held pending the inquiry, it may not fetch a satisfactory price. This has been considered. But it is felt, that in order to save delay, the power proposed should be given to the Court.

Order XXI, rule 59(security)

A provision authorising the court to require security or to impose other conditions has been added. The Calcutta Amendment to Order XXI, rule 58 may be compared.

Order XXI, rules 60, 61 and 62

The existing rules 60, 61 and 62 contain detailed provisions as to the powers of the court. Since it is intended that a full inquiry should now be held, these have not been repeated in extenso.

Order XXI, rule 63

Since the inquiry under these rules is intended to be conclusive, the provisions of existing rule 63 which allow a suit to be filed to set aside the decisions paSsed in such inquiries are not now needed, except in the cases where the court refuses to adjudicate upon the claim on the ground of delay, etc., or on the ground that it was filed after the sale was held. The operation of rule 63 should, in effect, be confined to such cases. A provision incorporating the substance of rule 63, confined as above, is therefore proposed.

Code of Civil Procedure, 1908 Back

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