RAM NATH Vs. CIVIL JUDGE MUZAFFARNAGAR

JUDGEMENT

(1.) D. P. Singh, J. Heard Sri Z. K. Hasan, learned Counsel for the petitioner and Sri Vishal Khandelwal for the contesting respondent.

(2.) THE writ petition is directed against a revisional order dated 29-9-1982 by which an objection under Section 47, CPC read with Order XXI, Rule 90 filed by the petitioner has been rejected and so also the order of the trial Court, allowing the said objection, has been set aside.

(3.) IN support of the first contention, the learned Counsel for the petitioner has submitted that as he was the transferee of the judgment debtor, therefore, he was its representative and an interested person. Further, it has been urged that since the suit property had already been sold prior to the passing of the decree, the auction sale so far as plot No. 959 is concerned, was void. It has also been urged that the application under Order XXI, Rule 90 is maintainable in view of the fact that his interests in the said property were affected by the sale. IN any event, it is contended that the petitioner was claiming a paramount title whose interests are affected by the sale. Thus, the appellate Court committed manifest error by holding that the application of the petitioner was not maintainable. IN support of his contention the learned Counsel for the petitioner has relied upon a decision of the Madras High Court rendered in the case of Saraswathi Ammal v. M. Reddiar, AIR 1975 Madras 147, wherein it has been held that if a person's paramount title is affected by the sale, application under Order XXI, Rule 90, CPC would be maintainable. However, Sri Khandelwal has urged that question with regard to saleability of the suit property could not be examined under Rule 90 of Order XXI. Relying upon sub-section (3) of Rule 90, the argument is that since recourse to Order XXI, Rule 58 has not been taken by the petitioner, the application under Order XXI, Rule 90 was not maintainable. He has urged that objection to the attachment could have been raised under Order XXI, Rule 58 as the decree-holder and the petitioner were both father and son. Further it has been urged on behalf of the contesting respondent that Section 47, CPC does not apply to the facts of the present case since the petitioner was neither representative of the parties nor was a party to the decree and his objection only related to saleability of the property.