M S LAKSHMINARAYANA BHATTA Vs. B R SHETTY

JUDGEMENT

(1.) HEARD the arguments of learned Counsel Jagannath Shetty for respondent 3. The advantage of the argument of learned Counsel for the other side could not be had as they were not present when the matter was taken up for hearing and disposal.

(2.) THE petitioner was the third party-applicant in the application filed under Section 47 read with order 21, Rule 90, Civil Procedure Code as an objector in Execution Case No. 103 of 1994 on the file of the Court below. By this revision he has challenged the executing Court's order dated 14-2-1997 passed dismissing his said application.

(3.) THE said application was made by the petitioner resisting sale of building property of judgment-debtor towards recovery of decretal amount. It was prayed therein to set aside the court sale of the said property on the ground that it was already purchased by him for valuable consideration and in good faith from the judgment-debtor on 12-10-1994. The Trial Court by its considered order sought to be impugned has dismissed the said application. Mr. Jagannath shetty, learned Counsel for respondent 3, contended that the revision does not lie from the impugned order in that it is an appealable order under Order 43, Rule 1 (j) of Civil Procedure code. Reliance had been placed by him in support of this contention on a Single Bench decision of Allahabad High Court in Kedar Nath v M/s. Purushottam Das Banarsi Das, as also on a division Bench decision of Andhra Pradesh High Court in Sheikh Mastan v Gubba Atchayya. Support for this proposition was also sought to be drawn from a Division Bench decision of this court in Karnataka Bank Ltd. v K. Shamanna and Others. 3-A. Rule 90 of Order 21, Civil Procedure Code simply provides for making an application to set aside sale effected in an execution proceedings, on the ground of irregularity or fraud by the decree-holder, or the purchaser or any other person entitled to share in a rateable distribution of assets or whose interests are affected by the sale. This rule does not further provide for the manner of enquiry or disposal of such an application made thereunder by an interested person. Rule 92 of Order 21 only speaks of the disposal of an application made under Order 21, Rule 90, civil Procedure Code. Order 43, Rule 1 (j) of Civil procedure Code provides for an appeal from an order under Rule 92 of Order 21, Civil Procedure Code. Dealing with the nature of order requiring to be passed under Rule 90 read with Rule 92 of Order 21 and Rule 1 (j) of Order 43, civil Procedure Code the High Court of Allahabad, in the case of Kedar Nath, supra, has held: "when the Legislature considered it necessary to give further particulars of the appealable order covered by clause (j) all the words used must be given their proper meaning, and it shall have to be held that the order contemplated by clause (j) is one setting aside a sale as contemplated by sub-rule (2) of Rule 92 of 21 or an order refusing to set aside a sale as a consequence of which the sale is confirmed and the sale becomes absolute under sub-rule (1 ). By implication this order shall be deemed to be under sub-rule (1) of Rule 92 of Order 21, Civil Procedure Code. I am thus of opinion that the impugned order dismissing the application under Order 21, Rule 90, Civil procedure Code refusing to set aside the sale was appealable under the above class". The same view had been taken by the Division Bench of Andhra Pradesh High Court in Sheikh mastan's case, supra. This Court in Kar-nataka Bank Limited's case, supra, entertained the appeals filed against the executing Court's orders disposing of an application under Order 21, rule 90, Civil Procedure Code. In the light of these pronouncements I am constrained to accede to the contention of Mr. Jagannath Shetty and hold that the revision filed by the petitioner challenging the executing Court's order passed dismissing his application under Order 21, Rule 90, Civil Procedure Code is not maintainable.