SHEO RATAN Vs. DEV NAND

JUDGEMENT

(1.) This application in revision by Sheo Ratan is directed against the order of Second Additional District Judge, Fatehpur, dated 19th of December, 1978 refusing his request for recalling an order dated 9th of September 1978 rejecting his application for setting aside an auction sale. It appears that one Beni and his sons obtained a decree for recovery of costs amounting to Rs. 617,50 against Bhagwati. The decree-holders then put their decree into execution by attachment and sale of certain immovable pro perty. The applicant Sheo Ratan, who happens to be the brother of Bhagwati (judgment-debtor), filed an objection under Order 21, Rule 58 of the Code of Civil Procedure on the ground that the entire attached property did not belong, to Bhagwati. He claimed that he had half-share in the said property which was not liable to be attached in execution of a decree against Bhagwati, How ever, the aforesaid objection of Sheo Ratan was dismissed for non-appearance on 26th of March, 1977. The attached property was ultimately sold on 17th of December, 1977 and was purchased by Ram Narain for a sum of Rs. I400/ -. Sheo Ratan then filed an application under Order 21, Rule 90 of the Code of Civil Procedure. He claimed that he owned half-share in the property sold and that the sale was vitiated because of a number of irregularities com mitted in publishing and conducting the same. He therefore prayed that the sale be set aside. This application was dismissed on 9th of September, 1978 as Sheo Ratan failed to appear before the executing Court on the day fixed in the case. Sheo Ratan then filed an application on 20th of September, 1978 and prayed that the order dated 9th of September, 1978 be recalled and he be allowed to press his prayer for setting aside the sale, made in his application under Order 21, Rule 90 of the Code of Civil Procedure, afresh. The executing Court, vide its order dated 19th of December, 1978 (which is the subject matter of this revision), rejected Sheo Ratan's request for recalling the order dated 9th of September, 1978. It held that after dismissal, of his objections under Order 21, Rule 58, Sheo Ratan could not claim that he had any interest in the disputed property and no request under Order 21, Rule 90 of the Code of Civil Procedure for setting aside the sale could be entertained at his instance. In the circumstances, no useful purpose would be served' by recalling the order dated 9th of September, 1978. Moreover, no application for recalling an order dismissing an application under Order 21, Rule 90 of the Code of Civil Procedure for non-appearance of a party lay. The remedy of the applicant, if any, was to make a fresh application under Order 21 Rule 90 of the Code of Civil Procedure. Being aggrieved, Sheo Ratan has come up in revision before this Court and has assailed the correctness of both the reasons given by the executing Court for rejecting his prayer for recalling the order dated 9th of September 1978. In my opinion, the second of the two reasons mentioned by the Court below for refusing to entertain applicant's request for recalling the order dated 9th of September 1978, is not tenable. Sub-rule (2) of Rule 105 of Order 21 of the Code lays down that where on the day fixed or on any other day to which the hearing of an application under the foregoing Rules of Order 21 (which includes an application under Rule 90) may be adjourned, the application does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed. Rule 106 then lays down that the applicant against whom an order is made under sub-rule (2) of Rule 105, may apply to the Court to set aside the order and if hi satisfies the Court that there was sufficient cause for his non-appearance when the appli cation was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application. As the order dated 9th of September, 1978 rejecting applicant's request under Order 21, Rule 90 of the Code of Civil Procedure for setting aside the sale, had been rejected for non-appearance of the applicant on the date fixed, the order elearly fell within the ambit of sub-rule (2) of Rule 105 of Order 21 of the Code and the applicant could, as laid down in Rule 106, get the same set aside after satisfying the Court that there was sufficient cause for his non-appearance when the said application was called on for hearing. I now proceed to consider whether the executing Court was justified in refusing to recall its order dated 9th of September, 1978, for the reason that once applicant's objection under Order 21, Rule 58 of the Code of Civil Procedure, wherein he claimed that he had half-share in the property which was not liable to be attached in execution of a decree against Bhag wati was dismissed, (even for non-appearance), the applicant could not reagitate that question and urge that his interest was affected by the sale and, as such the application for setting aside the sale was not maintainable at his instance. Order 21, Rule 90 (1) runs thus:- "90. Application to set aside sale on account of irregularity or fraud.- (1) where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser or any other parson entitled to share in a rate able distribution of assets, or where 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. " A bare perusal of the aforesaid rule shows that it enables the persons falling in the following categories alone to make an application for setting aside a sale of a property sold in execution of a decree:- (1) the decree-holder, or (2) the purchaser, or (3) any other person entitled to share in the rateable distribution of assets or (4) the person whose interest is affected by the sale. It is obvious that the applicant in this case does not belong to any of the first three categories mentioned above. The only thing to be seen is whether in view of the fact that the applicant claimed to be a co-sharer in the disputed property along with the judgment-debtor it can be said that his interest was affected by the sale held in execution of the decree obtained by Beni and others. The applicant claims that inasmuch as his objection under Order 21, Rule 58 of the Code of Civil Procedure, to the attachment of the property was dismissed for his non-appearance, his claim that he had half-share in the attached property which share was not liable to be sold in execution of a decree obtained against his brother, had not been decided on merits. Mere dismissal of his objection under Order 21, Rule 58 of the Code of Civil Procedure did not put to an end his title to the property and he did not cease to have an interest in it. As the auction sale was going to affect the said interest, he was entitled to maintain an application under Order 21, Rule 90 of the Code of Civil Procedure and to pray that the sale may be set aside on the ground that there was irregularity or fraud in publishing or conducting the same. I will, as claimed by the applicant, assume for the purpose of this dis cussion dismissal of the applicant's objection under Order 21, Rule 58 of the Code of Civil Procedure did not in any way affect his right, title or interest in the property sold. The question for determination would be as to whether, if applicant had any such interest in the property as claimed by him, that interest has in any manner been affected by the execution sale so as to enable him to maintain an application under Order 21, Rule 90 of the Code of Civil Procedure. Before a person can claim that his interest is affected by the execution sale, he has to show that there has been some change in his interest in the property sold as a consequence which legally flowed from that sale. In case the title or interest of the applicant in the property sold is or has been affected by some activity other than the sale of the property, the applicant has to seek his remedy elsewhere and he cannot maintain an application under Order 21, Rule 90 of the Code of Civil Procedure. It is now well settled that in execution of a decree it is only the property belonging to the judgment-debtor or the interest of the judgment-debtor in such property which alone can be sold. Such sale does not affect the right, title or interest of any other person in the property. Thus a person claiming by title paramount to the judgment-debtor cannot say that his interest are affected by the sale whether it be regular or irregular and such a person cannot pray for the setting aside of the sale. This view is fully in consonance with a Full Bench decision of the Calcutta High Court in the case of Asmutunissa Begum v. Ashruff' Ali, I. L. R. I5 Cal. 488 wherein it has been held that the person who claims to be the purchaser of immovable property from the judgment-debtor prior to the attachment cannot apply for setting aside of a sale under this rule. Similarly, the Madras High Court has, in the case of Subbaravadu v. Pedda Subbarazu, I. L. R. 16 Mad. 476 ruled that where a joint Hindu family property is sold in execution of a decree against a member of the joint family, another member claiming the whole property on the death of the judgment-debtor by survivorship cannot apply under this rule. Again it has been held in the cases of Bisheshar Kuer v. Hari Singh, I. L. R. 5 All. 42 and Kunjoo Lal v. Idur Ali, A. I. R. 1927 Cal. 82 that a co-sharer cannot apply under this rule for his share does not pass under or in affected by the sale. It is true that aforementioned cases cited by me are under the old Code of Civil Procedure but then the ratio of these cases with regard to the person whose interest is affected by the sale so as to enable him to challenge an execution sale on the ground of fraud or irregularity continues to be applicable even under the new Code as it stands after the amendment made in the year 1976. In the instant case, the applicant claimed an interest in the property as a co-sharer and it is in the purported protection of that interest that he filed an application under Order 21, Rule 90 of the Code of Civil Procedure and prayed that the sale may be set aside. As stated above, if the applicant's interest in the attached property was not affected as a result of rejection of his objection under Order 21, Rule 58 of the Code of Civil Procedure, (a point on which I do not express any opinion inasmuch as the propriety of that order is not in issue in that proceedings), it certainly was not affected by the sale sought to be impugned by the applicant. The applicant, therefore, had no locus standi to maintain an application under Order 21, Rule 90 of the Code of Civil Pro cedure and to pray for the setting aside of the auction sale. In the result, even if it was open to the applicant, whose application under Order 21, Rule 90 of the Code of Civil Procedure for setting aside of the sale had been dismissed for non-appearance, to have that order recalled on his satisfying the Court that there was sufficient cause for his non-appearance when the case was called on for hearing, no useful purpose would be served by recalling that order inasmuch as the application is not a person who falls in any of the categories of person entitled to maintain an application under Order 21, Rule 90 of the Code of Civil Procedure and to pray for the setting aside of the sale on the ground of fraud or irregularity in publishing or con ducting the sale. I am, therefore not satisfied that any case has been made out for interfering with the impugned order. The revision application, therefore, fails and is dismissed with costs. .