SAKARLAL JAMNADAS Vs. JERBAI SORABJI PATEL

JUDGEMENT

(1.) This is an appeal against an order of the First Class Subordinate Judge of Thana refusing to set aside a sale of certain property held in execution of three darkhasts, Nos. 366 of 1924, 447 of 1924 and 271 of 1925, which had been filed by respondents Nos. 1 to 8 against the appellant and respondent No. 11, Balkisandas Tulsidas. A considerable amount of property was to be sold. The bulk of it, consisting of lots Nos. 1, 2, 4 to 12 and 14, was sold in the year 1929. The remaining lots Nos. 3 and 13, with which this appeal is concerned, were sold on December 31, 1931. The appellant sought to have the sale set aside cm various grounds. His first contention was that the proclamation of sale with regard to the properties wrongly mentioned that there was a charge of Rs. 31,035 odd on the whole of lots Nos. 3 and 13, whereas as a matter of fact this charge really subsisted only on the property of respondent No. 11 Balkisandas, i.e., the whole of lot No. 3 and half of lot No. 13, lot No. 13 consisting of a house, half of which belongs to the appellant and half to Balkisandas. He also alleged that at the time of the sale there was no subsisting attachment on the property, and that the closing of the sale by the Mahalkari before 5 P.M., when, according to the proclamation, the sale was to be held between the hours of 11 a.m. and 5 P.M., was a serious irregularity which caused substantial injury to the appellant. It was further alleged that the house which was sold was not liable to attachment because it was occupied by the appellant who was an agriculturist.

(2.) It has been contended on behalf of the respondents that the application to set aside the sale, even if allowed, could affect only the appellant's share of the property (i.e., half of lot No. 13) and could not affect the other half of lot No. 13 and the whole of lot No. 3 with which he is not concerned. Order XXI., Rule 90, of the Civil Procedure Code, allows any one, whose interests are affected by the sale, to apply to the Court to set aside the sale on certain grounds. It seems to me that the appellant comes within the meaning of the term "person whose interests are affected by the sale ". It is true that as he and Balkisandas were joint debtors under the decree, the judgment-creditor could have sold the share of the appellant alone without selling the share of respondent No. 11 to recover his dues. But there is no question that if the share of respondent No. 11 is wrongly sold for a lower amount, the burden on the appellant's share of the property would to that extent be increased. In my opinion, therefore, the appellant can challenge the sale of the whole property including lot No. 3 and respondent No. 11's share of lot No. 13.

(3.) The lower Court has held that the appellant is estopped from raising the contention with regard to the improper description of the property in the proclamation of sale because he had been aware of the defect in the proclamation long prior to the sale and took no steps to get the error corrected when it was his duty to have done so. It seems to me that the view taken by the lower Court is correct.