SOMAYAJULU VENKATANARASIMHAM Vs. GOVINDA SURYANARAYANA BEING MINOR REPRESENTED BY HIS MATERNAL GRANDFATHER AND NEXT FRIEND, NADIMINTI GANESWARA RAO

JUDGEMENT

(1.) These revision petitions both contest the correctness of an order passed in an application under Section 23 of Act IV of 1938, whereby in November, 1938, one of the judgment-debtors under the decree in a rent suit, who had been impleaded as counter-petitioner, was transposed as a petitioner when a doubt was raised as to the competency of the original petitioner to maintain the application. The petitioners under C.R.Ps. Nos. 1663 and 1333 are the landholder and the auction-purchaser respectively. The sale was held in January, 1938. The contesting respondent who was a mortgagee from the 1 judgment-debtor filed an application under Section 23 on the 10 June, 1938, less than a fortnight before the expiry of the period allowed in Section 23. An objection being raised to the maintainability of the application on the ground that the applicant was not a judgment-debtor, the applicant seems to have sought to get round the difficulty by getting one of the judgment-debtors to join him in the array of applicants.

(2.) The basis of an application under Section 23 is, firstly a sale in execution of a decree of land in which an agriculturist had an interest, and secondly, an application within 90 days of the commencement of the Act by a judgment-debtor who is an agriculturist entitled to the benefits of the Act, to have that sale set aside. It is not therefore possible for a person who does not possess the necessary qualifications to move the Court to set aside the sale on behalf of someone else who does possess the necessary qualifications. The application by the respondent cannot be regarded as an application on behalf of the 2nd judgment-debtor; nor, in fact, did the application purport to be on behalf of the pattadars or to rest on their qualifications in any way. At the time when the 2nd judgment-debtor was transposed an application by him would have been time-barred by some four months.

(3.) This is not in my opinion a case to which Order 1, rule 10 has any application. There is no question of a bona fide mistake in filing the application in the name of a wrong person for the benefit of the right person. The application was filed by the wrong person for his own benefit and without any idea of saving the land, for his mortgagors. I am of opinion that the Court had no jurisdiction to order this transposition merely in order to enable the original applicant to overcome a valid objection to the maintainability of his application. More especially is this so if, as appears to be the case here, the person transposed had separately filed a petition claiming substantially the same relief, which petition had been dismissed and against which dismissal an appeal was pending. I have not got before me the papers in this other matter; but from the recitals in the lower Court's judgment it would appear that the 2nd counter- petitioner had applied under Section 15 to have the sale set aside. It seems not improbable that Section 15 was quoted when the proper section should have been Section 23. The 2nd counter-petitioner in whose interests this order is alleged to have been made has not thought fit to appear in this Court and support the order, the civil revision petitions being contested only by the original applicant.