RAJ CHANDRA DAS Vs. KALI KANTA DAS

JUDGEMENT

(1.) The facts of the case out of which this appeal has arisen are as follows: The petitioner held a mortgage-decree against one Kali Kanta Das. In execution of a rent decree against Kali Kanta the mortgaged property was sold and purchased by the opposite party Kasiruddin Sarkar. On 1 March 1921, within 30 days from the sale, the petitioner made the necessary deposit and filed an application under Order XXI, Rule 89, Civil Procedure Code. The Munsif passed the following order. "One Raj Chandra Das applies for setting aside the sale on deposit of the decretal amount with compensation. He is to prove the mortgage. Fix 9 March 1921 for hearing. The decree-holder also to bring evidence if he likes." On the 9 March following the order passed was: "The applicant does not appear to prove his case and hence the application under Order XXI, Rule 89, Civil Procedure Code is rejected." The petitioner appealed to the District Judge against the order of the Munsif rejecting his application under Order XXI, Rule 89, and the learned District Judge in a considered judgment expressed the opinion that, if on account of a certain bar in law the petitioner's application was not infructuous, he would have remanded the case to the First Court. He observes in one part of his judgment: "I consider, therefore, that the case has been disposed of on a preliminary ground, and that should it otherwise appear desirable to do so, it would be open to me to make the order of remand asked for." He, however, dismissed the petitioner's appeal on the ground that the auction-purchaser was not made a party to the application made under Order XXI, Rule 89, and hence that application was incompetent, inasmuch as the auction-purchaser could not be made a party at that stage as more than 30 days had elapsed since the sale. He was pressed by a decision of this Court in Ajiuddin Ahmad V/s. Khudabux Khondkar 50 Ind. Cas. 5, decided on the 27 January 1919 by Fletcher and Walmsley, JJ., and held that the auction- purchaser was a necessary party in an application like the present one, and as he was not made a party to this application within time, it would serve no useful purpose to remand the case to the Munsif.

(2.) The petitioner contends before us first that there is no provision in law enjoining that an auction-purchaser must be made a party. What the law insists upon is that before an order is passed setting aside a sale the auction-purchaser must have notice of the application under Order XXI, Rule 92, Clause (2). His second ground is that as a matter of fact he did mention the name of the auction-purchaser and it was for the Court to give him proper notice of the application.

(3.) With reference to the first point the Civil Procedure Code of 1882 did not expressly declare that the auction-purchaser must have notice of the application to set aside the sale either under Section 310-A or Section 311 of that Code or that no order setting aside the sale should be made in his absence. The point, however, came for consideration in several cases under the old Code before this Court and the majority of them held that on general principles an adverse order should not be passed against a party affecting his vested right without notice to him and behind his back, Kripali Singh V/s. Pairoo-Rout 5 Ind. Cas. 305 : 11 C.L.J. 86. In order to give effect to this view of the law a proviso has been added to Order XXI, Rule 92, of the present Code to the effect: "provided that no order shall be made unless notice of the application has been given to all persons affected thereby." All that the Statute now demands is that no order should be passed setting aside a sale without giving notice to the parties affected by it. The Statute or the case law does not go beyond the rule, namely, that no order should be passed without such notice. There is no provision in the law, nor have we been referred to any case where it has been authoritatively laid down that the auction-purchaser must be made a party in an application to set aside the sale. It is not clear what is meant by the expression "made a party." It seems to have been loosely used in some of the reported cases, but all these cases were decided to substantiate the rule that the auction-purchaser should be afforded an opportunity of being heard before an order was passed setting aside the sale. If by the expression it is understood that the parties to the application should be arrayed in the corresponding" categories of plaintiffs and defendants, there is no provision to that effect within the four corners of the Civil P. C.. To hold otherwise would necessitate reading into the proviso to Order XXI, Rule 92 a mandatory provision which could have, had the Legislature so intended, been expressly mentioned. Reference may usefully be made to the Forms prescribed in the First Schedule, Appendix to the Civil P. C.. Form 6 which is the form of application for execution of decree has a column in which names of the parties, namely, the plaintiff and the defendant are to be mentioned. All the other forms relating to execution have the word "title" on top of them. By "title" the names of the parties given in the application for execution are clearly indicated as all these applications and notices relate to the execution case. Form No. 36 which is the form of an application under Rule 90 (and is applicable to an application under Rule 89) has the same superscription. If any other "title" including the name of the auction-purchaser was intended, the heading of the form would have been otherwise.