MAHMOODA Vs. DISTRICT JUDGE BAHRAICH

JUDGEMENT

(1.) Besides the other questions which are involved in the present writ petition, which I will deal later on, it will be necessary to dwell into the scope and ambit of the provisions contained in Order XXI. Rule 90, C.P.C. which read as under : 90. Application to set aside sale on ground 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 person entitled to share in a rateable distribution of assets, or whose 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. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation.--The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.

(2.) A perusal of the aforesaid provisions indicates that any person who has a share in a rateable distribution of assets, or whose interest is 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, meaning thereby the scope and ambit of Rule 90 of Order XXI, to set aside the sale is confined only to the ground of material irregularity or fraud in publishing or conducting it. The question as to whether the property in question is saleable or not cannot be looked into within the four corners of Rule 90 of Order XXI. The objection for setting aside the sale must, pertain to any material irregularity or fraud in publishing or conducting the sale.

(3.) In the present case, the petitioner/objector before the Court of execution as well as revisional court, had taken up a plea that the house in question by means of an oral 'Hiba' 'Bayawaz Dein Mehr' (oral gift in lieu of dower money) was gifted to her by her former husband Bashir Ahmad. It was stated in the objection that Mr. Bashir Ahmad, her former husband who had divorced her later on, had delivered the possession of the house in question to the petitioner/objector and she enjoyed peaceful possession over the said house, since then.