MAHADEO RAM Vs. MOHAN VIKRAM SAH

JUDGEMENT

(1.) This case has been referred to a Special Bench for a consideration of the question whether an auction-purchaser of a property in execution of a decree is a person whose interests are affected by the sale "within the meaning of the words in Order 21, Rule 90, Civil P.C. The facts are that in execution of a decree which purported to be a rent decree a certain holding was advertised for sale. It appears that certain co-sharers in the holding had not been made parties in the rent suit and they made an application under Order 21, Rule 58 of the Code with the result that the share of the objectors was released from attachment and sale.

(2.) The sale proclamation however which related to the entire holding, remained as it was before the objection and the sale took place in accordance with the description of the property as contained in the sale proclamation. The petitioner was the purchaser at the sale, and soon after his purchase he discovered that what he had purchased was not the holding as described in the sale proclamation but only the right, title and interest of the judgment-debtors and that the property that he had purchased was subject to certain encumbrances. He accordingly made an application for setting aside the sale under Order 21, Rule 90, Civil P.C, The decree-holder appeared and filed an application stating that there had been irregularities in the sale and that he and the auction-purchaser had come to an agreement that the sale might be set aside, that the purchase money be refunded to the auction-purchaser, and that the execution case be struck off so that a fresh execution proceeding may be stated.

(3.) The learned Munsif however referred to certain decisions of this Court and held that an auction-purchaser is not entitled to apply under Order 21, Rule 90 to set aside a sale and he accordingly rejected the application. On appeal the learned Subordinate Judge concurred with the opinion of the Munsif and held that in face of the rulings of the Patna High Court the application could not be entertained. The auction-purchaser then came in revision to this Court, and the application was first heard by a Single Judge who referred it to the decision of a Division Bench. The Division Bench referred the matter to the learned Chief Justice for reference to a Special Bench and the matter has now been heard by us.