SUNDARAM ALIAS MYTHEENBIBI Vs. MAMSA MAVUTHAR, SHEIKKASIM MAVUTHAR

JUDGEMENT

(1.) The interpretation of the words "whose immoveable property has been sold", which were found in Section 311 of the Code of 1882 as to setting aside sales for irregularity and were used in Section 310-A, enacted subsequently, as to setting aside a Court sale on payment of the decree amount and five per cent on the purchase money, gave rise to much difference of opinion, and were not reproduced in the corresponding Rules 90 and 89 of Order 21 of the Code of 1908. As regards Section 310-A there was a conflict of opinion as to the nature of the interest which was sufficient to justify an application under the section and also as to whether a transferee by way of private sale from the judgment debtor after attachment but before the court sale, and a similar transferee after the court sale, were persons authorized to apply under the section. In Paresh Nath Singha V/s. Nabogopal Ghattopadhaya (1901) I.L.R. 29 Cal 1 it was decided by a Full Bench in Calcutta, Rampini, J. dissenting, that a mortgagee was a person whose immoveable property had been sold. In Ramchandra V/s. Rakhmabai (1898) I.L.R. 23 Bom. 450 it was, that a purchaser prior to the Court sale was not entitled to apply, whereas in Srinivasa Ayyangar V/s. Ayyalhorai Pillai (1897) I.L.R. 21 Mad 416 it was held that he could. Again in Kallar Singh V/s. Toril Mahton and Anr. (1897) 1 Cal. W.N. 24 it was. that a purchaser by private sale after the Court was not entitled to apply, whereas a contrary view was taken in Appayya Chetti V/s. Kunhati Beari (1906) I.L.R. 30 Mad. 214. These difficulties it was held endeavoured to meet in the new Code by substituting for "any person whose immoveable property has been sold" in Section 310-A the words "any person either owning such property or holding an interest therein by virtue of a title acquired before such sale."

(2.) On the language of this rule it was held by Benson and Sundara Aiyar, JJ. in Lakshmi Ammal V/s. Sankaran Nair which was followed on this point in Subba Rayudu V/s. Lakshmi Narasamma (1913) I.L.R. 38 Mad. 775 that a purchaser subsequent to the court sale is not precluded from applying, the words "by virtue of a title acquired before such sale" being read as applicable only to the words "holding an interest." This is no doubt a possible construction of the rule, but it has not been accepted in any other Court and is opposed to Ishar Das V/s. Isaf Ali Khan (1906) I.L.R. 80 Mad. 214. On the face of the rule words in question seem equally applicable to both classes of persons mentioned, and no reason has been suggested why a subsequent transferee by way of sale should be allowed to apply while a subsequent transferee of a lesser interest should not. On the other hand the previous conflict of decisions suggests that the intention of the amendment was to affirm Srinlvasa Ayyangar V/s. Ayyathorai Pillal (1897) I.L.R. 21 Mad. 416 : 8 M.L.J. 54 and Kallar Singh V/s. Toril Mahlon and Anr. (1897) 1 Cal. W.N. 84 and to overrule Bhayi Bhlmji V/s. Administrator General of Bombay (1906) I.L.R. 80 Mad. 214 and Appaya Chetti V/s. Kunhati Beari. (1906) I.L.R. 80 Mad. 214.

(3.) Having regard to the natural meaning of the words and the history of the rule I think we should accept the view that a purchaser subsequent to the court sale is precluded from applying under the rule, and I would accordingly overrule Lakshmi Ammal v. SankaranNair .and answer this part of the first question accordingly. The same result follows on the view taken in Pandurang Lakshman V/s. Govind Dada (1916) I.L.R. 40 Bom. 557 and in Mussummat Dhanvanti Koer V/s. Sheo Sankar Lal (1919) 4 Pat. L.J. 340. that the person owning the property is all along the judgment-debtor, as in this view the purchaser subsequent to the court sale can only come in by virtue of an interest acquired after the sale. I feel however quite unable to accept this construction. Having regard to the previous decisions, I cannot help thinking that if the legislature had meant "judgment-debtor" they would have said so.