NITAI DUTTA Vs. BISHUN LAL SAO

JUDGEMENT

(1.) This is an appeal by an auction-purchaser against an order allowing an application under Order XXI, Rule 90, Civil Procedure Oode.

(2.) The only ground on which the application under Order XXI, Rule SO, was resisted below and has been resisted here is that the auction-purchaser was not made a party to the proceedings within the thirty days prescribed for such applications. The sale took place on the 17 of March, 1930; the application under Order XXI, Rule 90 was filed on the 16 of April, 1930; and the auction-purchaser was added as a party on the petition of the applicant, dated the 24 of May, 1930. The lower court accepted the contention advanced on behalf of the applicant that it was not necessary for the applicant to add the auction-purchaser as a party; that all that is required under Order XXI, Rule 92 is that the court shall not pass an order disposing of an application under Order XXI, Rule 80, among others without giving notice to the persons concerned; and that no period is fixed within which this notice is to be served. In accepting this contention the lower court purported to follow certain decisions of this Court in which the view to the contrary is taken in Musammat Sumitra Kuer V/s. Damri Lal 62 Ind. Cas. 61 : 2 Pat. L.T. 336 by Ross, J., was not followed. The learned Advocate for the auction-purchaser appellant has contended that it is essential for an application under Order XXI, Rule 90 to make the auction-purchaser a party; but as was pointed out in Bibi Zainub V/s. Paras Nath 75 Ind. Cas. 430 : 2 Pat. 800 : 4 P.K.T. 591 : 1 Pat. L.K. 361 : A.I.R. 1924 Pat 37, Order XXF, Rule 92, does not any where speak of the auction-purchaser being made a party, but only provides that no sale can be confirmed or set aside unless notice of the application has been given to all persons affected thereby-a rule which means that the court is incompetent to make any order at all till such notice is given. The law does require that the application under Order XXI, Rule 90, should be made within thirty days of the sale but does not impose any period of limitation for the issue of notice. The same view was taken in Iswardas Marwari V/s. Biseswar Lal Marwari 94 Ind. Cas 31 : 7 Pat. L.T. 532 : (1926) Pat. 83 : A.I.R. 1926 Pat. 266, a decision by another Bench of this Court which followed the decision in Bibi Zainub V/s. Paras Nath 75 Ind. Cas. 430 : 2 Pat. 800 : 4 P.K.T. 591 : 1 Pat. L.K. 361 : A.I.R. 1924 Pat 37. Both the decisions followed Ganesh Babnaik V/s. Vithal Vaman Mahaiya 19 Ind. Cas. 475 : 37 B. 387 : 15 Bom. L.E. 244. a case in which the view taken in the Allahabad High Court regarding the decree holder being a necessary party in Ali Gauhar Khan v. Bansidhar 15 A, 407 : A.W.N. 1893, 173. was dissented from. It has been brought to our notice by the learned Advocate for the respondents that the Allahabad High Court has recently considered, in Dipchand V/s. Skeo Prasad 119 Ind. Cas. 103 : 51 A. 910 (1929) A.L. J 769 : A.I.E. 1929 All. 593 : Ind. Rul. (1929) All. 951 the decision in Ali Gauhar Khan V/s. Bansidhar 15 A, 407 : A.W.N. 1893, 173. and come to the conclusion that the view, or rather the view taken in the case it followed Karamat Khan V/s. Amir Ali A.W.N. 1891, 121. is no longer good law. The learned Advocate for the appellant has cited Maharajadhiraj Sir Rameshwar Singh Bahadur V/s. Mangal Prasad Sahu 125 Ind. Cas. 570 : 11 Pat. L.T. 880 : 9 Pat 310-A.I.R. 1930 Pat. 318 : Ind. Rul. (1330) Pat. 538 in which it was held that an auction- purchaser is a necessary party to an appeal arising out of an application under Order XXI, Rule 90, his absence being considered fatal to the appeal. In my opinion this decision is of no real assistance on the present occasion. The order to be passed by the primary court must under Order XXI, Rule 92, be passed after notice to the auction-purchaser; and any appeal arising out of such an order must necessarily be heard after bringing him on the record. The learned Advocate has endeavoured to distinguish the decision in Bibi Zainub V/s. Paras Nath 62 Ind. Cas. 61 : 2 Pat. L.T. 336 and Iswar Das Marwari V/s. Biseshwar Lal Marwari 94 Ind. Cas. 31 : 7 Pat. L.T. 532 : (1926) Pat. 83 : A.I.R. 1926 Pat. 266. on the facts. But the point is that both the decisions considered the matter generally and proceeded on the view that Rule 90, or it may be Rule 89 of Order XXI, or Rule 92, does not anywhere speak of the auction-purchaser or decree-holder being made a party. Apparently, the Lahore High Court has also recently taken the view that under these rules thera is no question of the decree-holder or the auction purchaser being made a party. The decisions of this Court followed the view taken by the Bomhay High Court and I have already referred to the recent view of the Allahabad High Court. On principle and authority alike, it seems to me clear that it was not necessary for the applicant under Order XXI, Rule 90, to name the auction-purchaser as a party in the application and that it was sufficient that the application was made within thirty days of the sale and notice of the application was subsequently given to the auction-purchaser.

(3.) I would, therefore, dismiss the appeal with costs. Mohammad Noor, J.