JAYALAKSHMI AMMAL Vs. SUBBRAYA REDDIAR

JUDGEMENT

(1.) A simple but interesting point arises on this revision petition, namely, whether a decree-holder, who has a charge on property, can apply under Order 21, Rule 89 C. P. C. to set aside the court sale held in execution at his or her own instance. The District Munsif answered the question in the affirmative but the learned District Judge took a different view and held that Order 21, Rule 89, C. P. C:, did not apply to decree-holders. The charge-holder is the petitioner and is strenuously opposed by the auction-purchaser, who it may be mentioned, bought two acres and 97 cents of lands of which 77 cents were wet in the auction for only Rs. 192. Jayalakshmi Ammal and Anr. vs. Subbraya Reddiar (deceased) and Ors. (01.08.1952 -... Page 1 of 4

(2.) The charge-holders were a widow Jayalakshmi Ammal and her minor daughter, who in O. S. No. 417 of 1944, was granted maintenance with a charge on certain items of property. In execution, they brought this land to sale with this result. They filed two applications, under Order 21. Rule 89 and also under Order 21, Rule 90. They obviously could not prosecute both simultaneously in view of Rule 89 (2) and withdrew the application under Rule 90.

(3.) Order 21, Rule 89 (1) has undergone more than one change. The old original Section in the Code was Section 310(a) which read as follows: "Any person whose immovable property has . been sold under this chapter may apply to have the sale set aside........." In -- 'Paresh Nath v. Nabogopal', 29 Cal. 1 a Full Bench of the Calcutta High Court, by a majority of four Judges to one held that a mortgagee came within the definition of a person whose immovable property has been sold. But in that case the mortgagee was not the decree-holder, who brought the property to sale.