NARANAPPIER Vs. CHIDAMABARAM PILLAI

JUDGEMENT

(1.) The Lower Court has made an order setting aside the sale of certain items under Order 21, Rule 90, and the appellant complains against that order. The point of law raised is, that the petitioner before the Lower Court has no locus standi under the rule in Question; in other words, that he is not a person " whose interests "are affected by the sale". The property was sold in parcels and the decree-holder (the appellant before us) purchased lots 3 and 5 ; another, a stranger, purchased lots , 2, 4 and 6 and he has not appealed against the part of the order affecting him. The decree-holder alone has thus preferred this appeal and we are therefore concerned with the sale of only lots 3 and 5. The position of the applicant before the Lower Court (to whom I shall refer as the respondent) is this. Subsequent to the attachment which preceded the sale, he purchased certain items in lot 3 and certain other items in lot 2 with which we are not concerned. Thus, in regard to lot 3, he claims that he has a right to apply under Rule 90, by reason of his purchase, which admittedly was made subsequent to the attachment. In regard to lot 5, the right he claims is a different one with which it is unnecessary to deal, in the view we have taken to which I shall refer presently.

(2.) The point of law argued is this: Is a person to whom the judgment-debtor transfers the property subsequent to its attachment entitled under Rule 90 to apply to set aside the Court sale? That is to say, is he or is he not a person "whose interests are affected by the sale"? The answer is obvious, that the Court sale affects his interests; he is interested in the property fetching as high a price as possible, being the person entitled to any surplus remaining over, after the decree is satisfied. As a matter of fact, the respondent has acquired the entire interest of the judgment-debtor in the property and he is the person that suffers, if there be irregularity or fraud in connection with the Court sale. But Mr. T.M. Krishnaswami Aiyar for the appellant contends, that the sale to the respondent being subsequent to the attachment confers on him no right at all and that he has therefore no locus standi under Rule 90. This argument which is professed to be based upon Section 64, Civil Procedure Code, overlooks its plain effect. In the first place, what the provision renders void, is not every transfer, but a transfer contrary to the attachment. The words " contrary to such attachment" were substituted in the present Code for words of much wider import " during the continuance of the attachment " in the Code of 1882. The expression in the old Code was too wide comprising as it did, alienations, that could not possibly prejudice the rights of an attaching creditor; but under the present section, the question to be considered is, is the transfer contrary to the attachment? When its effect is not to defeat the attachment but is, on the other hand, subject to it, it cannot possibly be held to offend against the section. Secondly, the section does not provide that the transfer shall be void absolutely or without limitation but only " as against all claims enforceable under the attachment". That means, that the purchaser is subject to the same liabilities as the judgment-debtor was and that by reason of the transfer he does not get any higher rights. The transfer is, subject to the claims under the attachment, but surely to commit an irregularity or a fraud in the conduct of the sale, is not such a claim. I have not the slightest hesitation in holding that, so far as lot 3 is concerned, the respondent has made out his right.

(3.) Then arises the question of fact, namely, was there material irregularity or fraud in regard to the sale of item 3 by reason of which the applicant has sustained substantial injury?