DACHEPALLI RAMANUJAM Vs. DARA RAJU

JUDGEMENT

(1.) The point that arises for determination in this appeal is whether a third party attaching creditor is a person holding an interest in the property within the meaning of that expression as occurring in O. 21, R. 89 of the Civil P. C. for enabling him to have the sale set aside?

(2.) This appeal by the 1st defendant is directed against the decree and judgment of the learned Subordinate Judge, Vizianagaram made in E A. No. 436 of 1975 in E. P. No. 71 of 1972 in O. S. No. 16/1968. That suit was instituted for the recovery of money. That was decreed. E. P. No. 71 of 1972 was filed for the purpose of securing the execution of the decree passed in the above suit. The house belonging to the judgment-debtor was put to auction and the auction was held on 25-9-1975. It is at that stage the third party filed E. A. No. 436 of 1975 under O. 21, R. 89 C.P.C. seeking the setting aside of the sale. That third party filed a suit O. S. No. 9 of 1972 against the appellant herein and obtained a decree for money. Pending disposal of that suit, he obtained attachment before judgment on 23-2-1972. Ultimately he obtained a decree in O. S. No. 9 of 1972 on 26-8-1975. The Court below held that the third party can maintain an application under O. 21, R. 39 C.P.C. for setting aside the sale taken place on 25-9-1975 because of the fact that he is the person holding an interest in the property under O. 21, R. 89 (1) C.P.C.

(3.) The point therefore that arises for determination, as has already been noticed, is whether the third party attaching creditor is a person holding an interest in the property sold and whether he is entitled to present an application under O. 21, R. 89 C.P.C. seeking the setting aside of the sale of the house.