KANDASWAMI KOUNDAN Vs. SANNI KRISHNAMA NAIDU

JUDGEMENT

(1.) Petnr. who was not a party to the decree filed an appln. under Order 21 Rule 89, C. P. C. to set aside a Ct. sale in execution. The Dist. Munsif & the Dist. J. in appeal concurred in finding that the petnr. had no 'locus standi' to file such an appln, as he was neither the judgment-debtor nor a person deriving title from him nor any person holding an interest in the property & dismissed his appln.

(2.) The facts are briefly these. The judgment debtor is stated without contradiction by the other side to be an old man of about 80. The Ct sale to execution of the decree against him was held on 14-10-1947 at which a house belonging to him to Dharapuram was sold for Rs. 1010. On 27-10-1947 the judment-debtor executed a usufructuary mtge. of some other property, the mtge. specifically reciting as part of the consideration a sum of Rs. 1500 which the mtgee. had to deposit in the executing Ct. What is most important is a specific direction in this mtge. deed to the petnr. to pay this money into Ct. & to get this house released from attachment. In accordance with this direction, the petnr. filed an appln. under Order 21 Rule 89 on 10-11-1947 making the full deposit required by that section. The point for consideration is whether his appln. was maintainable.

(3.) It is in the first place urged that the petnr, was an agent of the judgment- debtor & in this capacity made the deposit. Reliance Is placed on "Hanumayya v. Bapanayya', IL R 1945 Mad 566 : '(AIR (32) 1945 Mad 188) which held that it was sufficient if the deposit was made through an agent & that the personal attendance of the Judgment-debtor when depositing the money is not necessary. Mr. Desikan for the resp. concedes this position, but urges that the appln. under Order XXI, Rule 89 by the petnr. is not maintainable & that in the circumstances it was only the Judgment-debtor who could have filed it. He contends further that the petnr. can in no sense be considered a recognised agent within the meaning of Order 3 Rule 2, C. P. C. as he is not the holder of a power of attorney. These technical positions, can be met by counter technical positions, I think, to the advantage of the petnr. The facts of this case are peculiar & not on all fours with those in 'Krishna Naicker v. Sivasaml Chetti', 1943-2 ML J 281 : (AIR (30) 1943 Mad 709) on which Mr. Desikan relies to refute the petnr's possible position as a person who holds an interest in the property. The facts there were really quite different as the person who applied to set aside the sale had purchased some other property from the Judgment- debtor long prior to the Ct. sale & under his sale deed he merely had to deposit the price towards the decree. He made one or two deposits in driblets, then the property was brought to sale & afterwards he sought to come up with an appln. under Order 21 Rule 89, C. P. C. to set aside the sale as one interested in the property. His appln. was ultimately dismissed & if I may say so with great respect to the Bench, quite rightly. There were some observations in that decision to the effect that the interest in the property contemplated by this rule is an Interest in the very property the sale of which is sought to be set aside & that indirect interest is not sufficient. In view of the facts being different here, I am inclined to the view that in view of the specific direction & obligation imposed on petnr. In this registered mtge., he cannot be held to be a person who does not have an interest in the property brought to sale. If he failed to make the deposit & get the attachment on it set aside, his usufructuary mtge., would have failed for partial lack of consideration & from this point of view he was interested in getting the sale of this property set aside & its attachment raised.