T S VENKATESA AIYAR Vs. KSVENKATARAMA AIYAR

JUDGEMENT

(1.) The facts in this case are somewhat complicated. The petitioner in C.R.P. No. 523 purchased certain property from one Rajammal, the property having previously been sold in Court sale in execution of a decree obtained by one Venkatesa Aiyar, the petitioner in C.R.P. No. 522. The respondent in both these petitions is the Court auction-purchaser. The Court auction was held on the 27 April 1920 and, on the 24 of June 1920 Rajammal, the judgment-debtor sold the property to the petitioner Sabesa Ayyar. On the 5 of July 1920, the day the Court re-opened, Rajammal put in an application under Order XXI, Rule 89 and put into Court the necessary money and asked that the sale should be set aside. On the 12th August 1920 she put in 15. A: No. 162 of 1920 asking that Sabesa Ayyar may be made a party to the first petition, and on the same day Sabesa Ayyar put in a petition on his own behalf asking that the sale should he set aside. The three petitions were disposed of by one order and were dismissed on the 23 of August 1920. A joint appeal was then filed by Rajammal and Sabesa Ayyar on the 27 of November 1920 but it was held that, although there was only one judgment written, there were three orders to be appealed against; consequently, the original joint appeal was represented as three appeals, C.M. As. Nos. 17 and 21 by Rajammal and C.M.A. No. 22 by Sabesa Ayyar. The petitions had originally been dismissed in consequence of the ruling in Subbarayudu V/s. Laksminarasamma 22 Ind. Cas. 193 : 38 M.L.T. 98 : (1914) M.W.N. 147 : 1 L.W. 59, but before the appeals had been represented, the Full Bench judgment in Sundaram V/s. Mansa Mavuthar 63 Ind. Cas. 937 : 44 M. 554 : 40 M.L.J. 497 : 13 L.W. 498 : 29 M.L.T. 269 : (1921) M.W.N. 272 had been delivered and in accordance with that, the petition by the judgment-debtor to set aside the sale ought to have been allowed. Notwithstanding this, the judgment-debtor with drew both her appeals in April a June, 1921 respectively ; and when Sabesa Ayyar's appeal, C.M.A. No. 22, came on for hearing, the appeal was dismissed because the original application had been filed out of time. The question was then raised whether the judgment-debtor having withdrawn her appeals, the purchaser Sabesa Ayyar could be allowed to prefer an appeal against the order on her application under Section 146, C.P.C., but this contention was overruled. Sabesa Ayyar now prefers this petition against the order in C.M.A. No. 22 of 1921; and, no doubt, inasmuch as that appeal was preferred against the order on an application which had been filed out of time, it was rightly dismissed; but it is now con tended that, inasmuch as Sabesa Ayyar joined the judgment-debtor in the original joint appeal against the order on the three petitions, he must now be allowed to continue the appeal which had been withdrawn by the judgment- debtor under circumstances which tend to throw great suspicion on her bona fides, it being argued that, under Section 147, C.P.C., the petitioner should be allowed to take the proceeding, namely, file the appeal, which could have been done by the judgment-debtor, and reliance is placed on decision in Sitaramaswami V/s. Dulla Lakshmi Narasamma 48 Ind. Cas. 840 : 41 M. 510 : 8 L.W. 21. If the appeal into three separate appeals by separate appellants had been ordered by Court, I think there would be some notice in this contention, hut the only order on Court was that one appeal would not lie against the joint order on three petitions and there was no direction that the judgment-debtor and her vendee could not appeal jointly against the various orders. If they had represented the appeal jointly in the form of C.M.A. No. 17, then it would not have been open to Rajammal to withdraw that appeal without the concurrence of the petitioner; but the petitioner took the unfortunate course of removing his name from the Appeals Nos. 17 and 21 and only appealed in respect of his own application. His own application was clearly time-barred and, therefore, the appeal was rightly dismissed. Inasmuch as he was not a party to C.M.A. No. 17, it is difficult to see how he, can now be allowed to continue that appeal which had been withdrawn by the appellant. Undoubtedly under the Full Bench ruling, that appeal would have been successful if not withdrawn, and it is a curious fact that Rajammal filed her appeal through one Vakil at the e February, 1921 and withdrew it through another Vakil in April 1921 and it certainly looks as if this withdrawal was in collusion with the present respondent, the auction-purchaser, for he was the only person who would benefit by such withdrawal. Even the decree-holder contends that the withdrawal was without notice to him, although he was a party to the appeal.

(2.) We have now, therefore, to consider whether the appeal having been withdrawn the petitioner can be allowed to re-open the case. The Full Bench in Sundaram V/s. Mansa Mavuther 63 Ind. Cas. 637 : 44 M. 554 : 40 M.L.J. 497 : 13 L.W. 498 : 29 M.L.T. 269 : (1921) M.W.N. 272 decided that the purchaser of properties after the Court-sale cannot apply under Order XXI, Rule 89, and it would appear that that is sufficient to decide the present contention against the petitioner. It is, however, significant that no reference is made in the Full Bench decision to Section 146, C.P.C., nor to the ruling reported as Sitaramaswamy V/s. Dulla Lakshmi Narasamma 48 Ind. Cas. 840 : 41 M. 510 : 8 L.W.21. In that case it was held that, although the Court had a discretion under Order XXII, Rule 10, to allow a vendor to continue a pending suit, Section 146 gave such a vendor the right to prefer an appeal; and consequently, although the Full Bench has decided that a purchaser cannot, after a Court-sale, apply under Order XXI, Rule 89, it is not a decision directly to the effect that an appeal preferred by such a person would not lie, although, it would be extremely anomalous that a person who is not allowed to make a certain application should be allowed to appeal from the order on such an application. If, however, the decision in Sitaramaswamy V/s. Dulla Lakshmi Narasamma 48 Ind. Cas. 840 : 41 M. 510 : 8 L.W. 21 is correct, he would seem to have this power and that decision has not been overruled, but I may observe that in Sitaramaswamy V/s. Dulla Lakshmi Narasamma Ind. Cas. 840 : 41 M. 510 : 8 L.W. 21, the initial words of Section 146 "save as otherwise provided by this Code" do not seem to have been discussed; and if the Code provides that a certain person shall not file a certain application and it has been held by the Full Bench that a purchaser after Court-sale cannot file an application under Order XXI, Rule 88, it seems to me that the Code similarly restricts the right of appeal against an order on such an application, which is; in effect, a continuance of the same proceeding. I do not think it is necessary to determine this question now, for the petitioner could, have been a party to the appeal preferred by the judgment-debtor, but voluntarily withdrew. I think lie has misconceived his procedure and, consequently, his present petition must fail.

(3.) Civil Revision Petition No. 522 by the decree-holder has not been seriously argued and, considering that he came into Court so late, I think his petition was rightly dismissed. In as much however, as the judgment-debtor has, by her conduct seriously prejudiced the petitioner and as from the, circumstances of the case it would appear that she has taken this action in collusion with the auction-purchaser, the respondent, I dismiss both these petitions, but without costs.