RADHA KISSON MAHESRI Vs. TANSUK MAHESRI

JUDGEMENT

(1.) This Rule is directed against an order of the District Judge of Jalpaiguri dated 4 May 1934 confirming in appeal an order of the Subordinate Judge of the same District in a proceeding under Order 21, Rule 90, Civil P.C. The Courts below have dismissed the petitioners application under Order 21, Rule 90 not on the merits but on a preliminary ground that another decree-holder, who had applied for rateable distribution of the sale proceeds and had got part of them had not been made a party within the period of limitation for such an application and consequently the Court had no jurisdiction to entertain such an application. The only point for determination therefore is whether the Courts below were wrong in dismissing the petitioners application under Order 21, Rule 90 on this preliminary ground. Order 21, Rule 92, Clause (2) Civil P. C, is in these terms: Where such an application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within 30 days from the date of sale, the Court shall make an order setting aside the sale: Provided that nO order shall be made unless notice of the application has been given to all persons affected thereby.

(2.) The Code does not say that the parties who would be affected by the order setting aside the sale should be formally described as parties in the application for setting aside the sale. The names of the parties in the present case who will be affected by such an order are already on the record of the execution case. It would be therefore sufficient if before the sale is set aside, notice is given to the persons who would be affected thereby inasmuch as the proviso to Clause (2), Rule 92 simply lays down that no order setting aside the sale should be made unless notice of the application for setting aside the sale has been given by the Court to the persons affected thereby. The learned advocate for the opposite party however relied upon a decision of this Court in Ajiuddin Ahamad V/s. L. Khoda Bux, 1919 Cal 510. It is not however clear from the judgment in that case what the learned Judges meant when they observed that the auction purchaser should be made a party. If by the expression is understood that the parties to the application should be arrayed in the corresponding categories of plaintiffs and defendants, there is no provision to that effect within the four corners of the Civil P.C. To told otherwise would necessitate reading into proviso to Order 21, Rule 92 a mandatory provision which could have been expressly mentioned had the legislature so intended: see Raj Chandra Das V/s. Kali Kanta Das, 1923 Cal 394.

(3.) We are therefore of opinion that the application is not bad in form if notice has not been served on any person who may be affected by the order setting aside the sale. The Court has power to issue any such notice as the law does not impose any period of limitation for the said purpose. The learned Judge was therefore not right in holding that as the decree-holder who is entitled to rateable distribution was not mentioned as a party to the application for setting aside the sale within the period of limitation prescribed for such application, the application was bad and the Court had no jurisdiction to entertain such an application. We therefore make the rule absolute, set aside the order of the Courts below dismissing the petitioners application for setting aside the sale and direct that the said application be heard according to law by the learned Subordinate Judge. Costs of this Rule will abide the result, hearing fee being assessed at one gold mohur.