A SUBBARAYUDU Vs. TLAKSHMINARASAMMA (DIED)

JUDGEMENT

(1.) This is a petition by the judgment-debtor under Order XXI, Rule 89 of the Civil Procedure Code (corresponding to but differing substantially in its wording from the old Section 310-A) to have the Court auction sale of a property (which belonged to him on the date of such auction sale) set aside.

(2.) After the Court auction sale, however, he sold away all his rights to a stranger and on the date of this application made by him under Order XXI, Rule 89, he had no title in the property. Could such a person to allowed to make an application under the new Code to set aside the sale?

(3.) Now, an elementary principle of the law is that unless a statute clearly allowed it, a man who has no right in a property on the date of filing a suit or making an application in respect of that property cannot be allowed to file that suit or make that application. The natural meaning, therefore, of the words in Order XXI, Rule 89, "any person either" owning such property or holding an interest therein, etc, "is" any person owning such property or holding an interest therein on the date of making the application." The judgment-debtor would continue to own the property sold in Court auction on the date of the application under Order XXI, Rule 89, if both of the following conditions are fulfilled, (1) that the Court auction sale has not been confirmed and he has not therefore ceased to be the owner (this condition would be usually fulfilled as the application under Order XXI, Rule 89, should be made within thirty days and the sale is confirmed only after thirty days) and (2) that the judgment-debtor has not before the date of the application conveyed away all his rights to a stranger. The judgment- debtor in the present case did not own the property and had no interest in it on the date of the application and hence his petition was rightly (it seems to me) dismissed by the Appellate Court.