K CHIKKIAH SETTY Vs. ASWATHANARAYANA RAO

JUDGEMENT

(1.) The question for decision in this case is whether a Judgment-debtor who has conveyed the property by executing a sale-deed in favour of a third person can apply under Order XXI, Rule 90 of the Code of Civil Procedure for cancellation of a sale of the same subsequently held in execution of the decree. The answer to this depends on the construction of the words "person whose interests are affected by the sale' in the said Rule which runs thus: "Where any immovable property has been sold; in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it." The circumstances under which the question has arisen briefly are that in execution of a mortgage-decree in Execution Case No. 391 of 40-41 on the file of the Munsiff of Dodballapur certain properties were brought to sale and purchased by the 5th Respondent on 31-7-1941 and full satisfaction, of the decree was entered on 30th September 1942. The judgment-debtors, it is alleged, had sold the property to a third party on 29th May 1940. On 23-12- 1942 the 5th Judgment-debtor made an application under Order XXI, Rule 90 of the Code of Civil Procedure for cancellation of the sale. The application was dismissed by the learned Munsiff; but on appeal the learned Subordinate Judge set aside the order of dismissal and remanded the case for fresh disposal after inquiry. Against the order of remand the Petitioners, who are decree-holders have applied for revision in this Court contending that the application is not maintainable inasmuch as the 5th Judgment-debtor cannot be deemed to be a "person whose interests are affected by the sale" as he had parted with his interest in the property before the sale. On behalf of the 5th Judgment-debtor it is argued that this Js not a correct view of the application of the Rule and that in any case the liability of the 5th Judgment-debtor as a vendor to make good title to the property which he has conveyed to the purchaser is enough to entitle him to attack the Court-sale.

(2.) No case of this Court in which the point directly arose or was considered in the precise form in which it has been raised in this case has been brought to our notice. But in two cases facts of which are similar and both of which are decisions of the Division Bench, the expression "person whose interests are affected by the sale" is so differently interpreted as to give room for uncertainty about the application of the rule to a case of the present kind. The meaning of the words according to one Division Bench is opposed to that of another, with a view to resolve this conflict the case is placed before the Full Bench. '

(3.) The two cases in which there is divergence of opinion as regards the meaning to be attached to the words are 29 Mys C C R 174 and 45 Mys H C R 395. In both the cases the petitioner was the person to whom the property subject to the Court-sale did not belong but he was liable under the decree to pay the amount if any which remained clue after the sale. In the former case Chandrasekhara Aiyar, C. J., and Subbanna, J., held