RAVI NANDAN PRASAD Vs. JAGAR NATH SAHU

JUDGEMENT

(1.) This is a first appeal from an order which raises an important question - though to my mind a simple question - of the proper construction of Order 21, Rule 90 of the Civil P. C.. In the Court below an auction-purchaser who had purchased property put up for sale under a decree applied to have the sale set aside on the ground that he had suffered substantial loss owing to irregularity in the publication and conduct of the sale. An objection was taken in the Court below that the auction-purchaser had no right to apply under this rule. That objection was overruled by the learned Judge, who adopted the view taken by the Madras High Court in a case to which I will refer in a moment, and he then went on to hold that the property had been misdescribed by a material omission from the sale proclamation which omitted to mention that the property was subject to a charge called a perjawat, that the applicant was unware of it, and that he was induced to enter into the purchase by misrepresentation, which led him to believe that ho was purchasing an absolute ownership, whereas it was only a lease-hold property, and he therefore set the sale aside and directed that the money should be refunded to the purchaser.

(2.) The main question which has been very fully argued before us - all the authorities both before and since the present Coda having been referred to during the discussion - was whether the learned Judge was right in holding that an auction-purchaser can apply under Order 21, Rule 90. The question whether he can or cannot is obviously a very important one to auction-purchasers as a class, because if he can, and does not, or if he does and applies unsuccessfully, he is clearly prohibited under Rule 92 of the same Order from bringing a suit. This prohibition may in certain cases turn out to be a serious disadvantage to auction- purchasers. Under the old Code he could, and often did, bring a suit, and in some Courts a sort of traditional belief has taken root that he can bring a suit and cannot apply under this rule. If he has to apply under the rule, he has by the provisions of the Coda very little time at his disposal in which to do so, and if he allows the time to run out, he cannot fall back upon a right to sue, which, if it existed, would give him much more time to prepare for his case and to collect the relevant material. It might, however, on the other hand be pointed out that there are very good reasons why the Code should have provided that he should apply, and not bring a suit. Everybody else who can conceivably be affected by the sale- using that term in its widest sense-has to apply and cannot sue. There does not seem any real reason why the auction-purchaser should stand in any different category. Moreover the Court executing the decree, controlling and carrying out the sale, is obviously the Court best equipped for determining the question whether there has been irregularity or fraud in the publishing or conduct of it, and a fortiori if it is the best Court for the purpose, it is clearly best in the interests of the parties and for the Court that the matter should be disposed of as speedily as possible and by an application, rather than by a dilatory suit, for after all it is the execution proceedings which are concerned, and it is desirable that the question whether the sale ought to be confirmed or not should be settled as speedily as possible. But whether the foregoing observations are sound or not-and they are merely obiter-they cannot affect the interpretation of this rule if the language of the rule is clear.

(3.) The question whether an auction-purchaser is entitled to apply, depends on the question whether he is included in the expression "a person whose interests are affected by the sale." It is necessary to observe that this expression was not contained in the corresponding provision which was in force up to 1908, and up to that date the, auction-purchaser could not apply but could bring a suit. It follows therefore, that for the purpose of determining this question, the cases decided before 1908, or decided after 1908, with reference to proceedings which had begun before 1908, bearing upon the question whether auction-purchasers could apply or could properly bring a suit, are wholly irrelevant, and for my part, I decline to look at them. Unfortunately I find them still cited, as though they were relevant and authoritative, in textbooks dealing with the law under this rule, and they have been cited as authorities in one decision from which I feel compelled to differ. The expression to be considered is: "whose interests are affected by the sale." I find myself compelled to hold a? a matter of law that a person who is the highest bidder, whose bid is accepted, who is compelled by law to pay a deposit, and unless something intervenes, is compelled by law to complete his purchase is a person "whose interests are affected by the sale, It is impossible to use a wider term than "a person's interests." In the ordinary use of the word in the English language it is a term covering every sort of interest recognised by law, such as, in the case of an auction-purchaser, liability to pay the money, liability to complete and take a transfer of the property, and from his own point of view the necessity of finding the necessary funds, and also the necessity of carrying through to fruition the provisional contract into which he has entered. If the expression were "interest in the property," it would of course be confined to an interest in the property sold antecedent to the sale. If the word were merely "interest" without the plural and without the words "in the property," it might be possible to hold that the word "interest" was confined to interest in the thing itself at the time of the sale. But that is not the expression, and to my mind the actual expression, in the rule is free from ambiguity or difficulty of any kind and ought to be construed as meaning what it says. It would be unnecessary further to labour this point if it were not for two decisions of the Patna High Court relied upon by the appellant. The first is the case of Khetre Mohan Datta V/s. Sheikh Dilawar (1918) 3 Pat. L.J. 516 decided in the year 1918. No reference is contained, either in the judgment, or in the head-note, to the rule which the Court was construing. The Court seems to have assumed that the question was settled beyond controversy and not open to argument. The judgment says:--"the Munsif very properly held that the auction- purchaser was not a person who could come in and attack his own purchase," and it went on to say "it is quite clear that it is not open to a party who purchases at an auction sale to impugn the validity of his own purchase." It is clear therefore that the Court was treating it as a matter which was well settled. I cannot, with great respect, accept the expression used in the foregoing quotation, that an auction-purchaser complaining of any irregularity antecedent to the sale, is attacking his own purchase. What he is attacking is the conduct of the sale on the publication of the material factors or description of the property put up for sale, and it seams to me a mis-description to say that in seeking relief from a burden which has been unjustly imposed upon him by an irregularity mis-describing the subject-matter of his purchase, or concealing material facts, he is making as attack upon his own purchase. It is merely a complaint that he has, either as the result of a mistake, or of a trick, bought something which he had not the slightest intention to buy, and that he is saddled with something which was not, so far as he is concerned, his purchase at all. The Madras High Court in 1921 in the case of Bhavirisethi Gopalakrishnayya V/s. Pakanati Pedda Sanjeeva Reddi without apparently being aware of the decision in Patna held that the expression included the auction-purchaser. This is the decision which the Court below has rightly followed. I merely wish to say with regard to it, that I find it puts too narrow an interpretation even on the word "interest." It treats the word "interest" as being an interest in the property which he has acquired at the sale, declining to hold as the Patna High Court has done, that it was confined to the narrow meaning of interest prior to the sale. For my part, as I have already said, I see no reason for limiting it even to the notion of interest in the property sold. The matter came again before the Patna High Court in the year 1923 in the case of Kartik Chandra Chatterji V/s. Nagendra Nath Roy A.I.R. 1924 Pat. 319 and that Court had before it, and had to construe, Rule 90 with which we are now concerned, and it also had the advantage of considering the decision I have just referred to of the Madras High Court. The learned Judge who delivered judgment in that case repeated what he had said in the previous case of the Patna High Court to which I have referred, saying that it was settled in that Court, that is to say, Patna that the auction- purchaser could not apply except under Rule 91, and in explaining that Rule 90 was not designed for the relief of the auction-purchaser at all, it cited decisions from the Calcutta High Court and by the Privy Council antecedent to 1908, which to my mind are irrelevant. The Court declined to follow the view taken in Madras, holding that it was precluded from doing so by the language of Rule 90, and held that "interests affected by the sale" mean "interests in the property existing before the sale." I do not think that we have any right to insert fundamental amendments of this kind into the plain language of a rule. To my mind that is not interpretation but legislation, and I can only repeat that we are bound to take the words as they stand, and that it is quite obvious that an auction-purchaser whose bid is accepted and who is provisionally bound to complete his purchase, is a person whose "interests are affected by the sale." I would even be prepared to go further by way of attempting to explain why the word "auction-purchaser" is not used in the rule as it is used in the next rule, which provides that the auction-purchaser may apply to set) aside the sale where the judgment-debtor has no saleable interest in the property, and say that in a case, for example, where the auction-purchaser was a mere trustee or agent employed to purchase on behalf of a syndicate of persons who were either unwilling or unable to be present, and who entered into the purchase, on their behalf in his own name, and then quarrelled with them and declined to take the necessary steps to set aside the sale if there has been irregularity against which they desired to protect themselves, yet although they were not actually the purchasers at the sale in so many words, they would be persons whose interests were affected by the sale, and who might ultimately apply on the ground that the auction-purchaser declined to do so on their behalf. The result is that in my view the auction-purchaser is now brought into the same category as the decree-holder, judgment-debtor and other persons in previous rules upon the subject, and may apply under Rule 90 with the natural result that he is prohibited from bringing a suit on the same complaint. On this ground I hold that the appeal fails subject to the further question whether we are prepared to confirm the learned Judge on the merits.