KUNJUKRISHNAN Vs. SANKARAN POTTI

JUDGEMENT

(1.) One Kochappi Kunjukrishnan filed I. A. 2154/63 in O. S.10/56 for setting aside the sale in execution under 0 21. R.90 CPC. The sale took place on the 24th of June, 1963; but the property was placed under attachment on the 28th of November, 1962. The decree was for costs in the suit which was dismissed. The decree holder was the 1st defendant; the plaintiffs were the judgment debtors. The sale was conducted on the 24th of June, 1963 and the property was bid by the decree holder for Rs. 186-29 Ps. The petitioner's case is that the property was purchased by him from the plaintiff on 20-8-62, that is, long before the attachment. At the time of the attachment, therefore, the judgment debtors had no interest in the property. The decree holder knowing about the sale to the petitioner fraudulently got the property attached and sold and the proceedings were all conducted secretly; there was material irregularity in the conduct of the sale and the property was sold for a grossly inadequate price. The 1st defendant decree holder stated that the sale in favour of the petitioner was benami for the judgment debtors and that it is unsupported by consideration. The contention was also raised that 'the petitioner had no locus standi to challenge the sale. At the time of the sale the judgment debtors had no saleable interest in the property. The execution court allowed the petition and set aside the sale; but in appeal the learned Addl. District Judge of Trivandrum set aside the order and dismissed the petition under O.21 R.90 CPC.

(2.) The main question for consideration is whether the petitioner was competent to apply under O.21, R.90 CPC. to set aside the sale; even if it is found that the petitioner is competent whether at the time of the sale the judgment debtors had any saleable interest in the property. On both these points, I think the view taken by the learned appellate Judge must prevail. A Bench of 6ve judges of the Calcutta High Court had to consider this question in Asmutunnissa v. Ashruff (ILR 15 Cal. 488). In that case also, as in the present one, the objector was a person who claimed the property as her own alleging that she had bought it from the judgment debtor .prior to the attachment. The question was whether such a person is entitled to object to the sale. The learned Judges observed in that case: --