HIRA LAL SAHA Vs. AKSHOY KUMAR SAHA

JUDGEMENT

(1.) The facts which have given rise to the present Rule are briefly these: There was an auction sale held in execution of a decree obtained by the petitioner and the property put up to sale was purchased by one Ashoy Kumar Saha, the opposi te party before us, for Rs. 3,005. The earnest money was deposited by Akshoy Kumar, but Akshoy failed to pay the balance with the result that the property was resold and purchased by the petitioner, the decree- holder, for Rs. 1,510, and Akshoy was directed to put in the deficiency, viz. Rs. 1,495. Thereupon Akshoy filed an application under Order 21, Rule 90, Civil P.C., for setting aside the sale at which the decree holder had purchased the property for Rs. 1,510. The learned Subordinate Judge rejected the application on the preliminary ground that Akshoy had no locus standi to file the application. This order was reversed by the learned District Judge and the learned District Judge directed the first Court to decide the case on its merits, holding that Akshoy had locus standi. Against this order of the District Judge, the present Rule is directed. The only point for determination in this case is whether Akshoy, who was the defaulting auction purchaser, had locus standi to apply under Order 21, Rule 190. On a consideration of the facts of the case 1 am clearly of opinion that he had.

(2.) On behalf of the petitioner our attention was drawn to a decision of the Patna High Court in Khetra Mohan Dutta V/s. Sheikh Dilwar AIR 1918 Pat 636, and also a decision of this Court in Surendra Nath Das V/s. Alauddin Mistry , where it was held that the word interests in Order 21, Rule 90, refers to interest existing prior to the sale but not interest in the property acquired at the sale, I do not see how this decision can be of any help to the petitioner in the present case. In the present case the petitioner Akshoy was a defaulting auction-purchaser and as such he was under the provisions of Order 21, Rule 71 of the Code liable to make up any deficiency of any price which might happen on a resale of the property. He had therefore a contingent liability even before the sale; and as the term interests in Order 21, Rule 90, has been held to include all kinds of interest it is, in my opinion, wide enough to include a contingent liability also. That being so the learned District Judge was, in my opinion, right in holding that the defaulting auction purchaser Akshoy had locus standi to apply under Order 21, Rule 90. The result is that the Rule is discharged with costs one gold mohur. Jack, J.

(3.) I agree.