LAWS(PVC)-1940-4-157

MUNNALAL Vs. GOPILAL NATHURAM

Decided On April 01, 1940
MUNNALAL Appellant
V/S
Gopilal Nathuram Respondents

JUDGEMENT

(1.) ONE Rambharos Upadhyay, a retired Sub. Inspector of Police of Saugor, non-applicant 2, in execution of his decree in Civil Suit No. 55-B of 1936 against five persons (non-applicants 3 to 7), who were alleged to own a house in Saugor as co-sharers, attached the house and put it up for sale on 7th May 1938. Gopilal, non-applicant 1, is the auction-purchaser. One-fifth share in this house belonging to one of the five co-sharers (non-applicants 3 to 7) was however put up for sale in execution of another decree and was purchased by the applicants on 4th May 1937 and the auction sale in their favour was confirmed by the same Court which subsequently executed the decree in Civil Suit No. 55-A of 1936. "When subsequently the entire house was put up for sale on 7th May 1938 the applicants came forward as co-sharers to" the extent of one-fifth share in the house and offered their bid which was equal to the bid of Gopilal, non-applicant 1, the auction purchaser, and claimed that their bid should be substituted for that of Gopilal under Order 21, Rule 88. The sale amin before whom the bid was offered finding that he was ordered by the Court to sell the entire house and not a share in an undivided immovable property, declined to accept the bid of the applicants, but he reported to the Court what had happened at the sale. The applicants requested the Court executing the decree to treat their bid as final and confirm the sale in their favour under Order 21, Rule 88, as they had a preferential right to bid equal to the amount of the last bid. The Court however did not accede to the request and rejected the application of the applicants. The applicants have now come up in revision. Order 21, Rule 88, runs as under: When the property sold is a share of undivided immovable property, and two or more persons, of whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.

(2.) THE findings arrived at by the lower Court-in the present case are: (1) that the applicants were co-sharers to the extent of 1/5th share by reason of their prior purchase; (2) that there was a bid on their behalf equal to the bid of Gopilal, when the auction sale of the house was held on 7tb May 1938, but the sale amin did not accept the bid as the entire house was being sold and not a share of an undivided immovable property; (3) that the applicants could not claim to have their bid accepted in preference to that of Gopilal under Order 21, Rule 88, as what was sold was the entire house and not a share; and (4) that the applicants could not deposit 1/4th or 3/4ths as their bid was not accepted, but that this did not affect their right to be the purchasers if it be held that their contention that their bid should have been accepted be correct. It will thus be seen that the only point on which the Court below has negatived the claim of the applicants is that one of the conditions precedent to the application under Order 21, Rule 88, is that the sale ordered should be a sale of a share of undivided immovable property, and that condition was not satisfied in the present case. The Court below argued, and the same argument is pressed before me by the counsel for Gopilal, that in view of the wording of Order 21, Rule 88, unless the Court actually puts up to sale a share of an undivided immovable property, no co-sharer can come in and say that he is entitled to pre-empt.

(3.) I am of the opinion that the construction sought to be placed on the rule by the Court below is erroneous. In interpreting any rule, its pith and substance has to be considered, and it is not proper to add words which do not appear therein. "What is sold" must necessarily mean what is sold lawfully, and in the eye of the law. To permit the construction placed by the Court below will open the door for fraud. Where it is intended to defraud cosharers from bidding under this rule, the decree-holder has simply to say that the entire property is attached and sold, and if the cosharer fails to notice the attachment proceedings and does not object under Order 21, Rule 58, he will be debarred from bidding at the auction simply on the ground that what is purported to be sold and not what is sold is an entire property and not a share in undivided immovable property, though in fact and in the eye of the law the decree-holder could not put up for sale anything more than a share in undivided immovable property. Such a construction does not stand to reason. Order 21, Rule 88, is intended to safeguard the rights of cosharers in undivided immovable property and they cannot be deprived of that right so lightly.