FATIMA-UL-HASNA Vs. BALDEO SAHAI

JUDGEMENT

(1.) This case comes before us on a reference made by the District Judge of Moradabad under the provisions of Order 46, Rule 1, Civil P.C.

(2.) The facts are as follows: In execution of a decree obtained against the minor heirs of one Abdus Sattar, deceased, certain immovable property of the judgment-debtors was attached and notified for sale. This property was sold by auction on 20 October 1924. On 23 March 1924 the guardian of the minors had entered into a contract with Mt. Rifaqat-un-nisa for sale to her of the property which was under attachment. At that time the guardian (Mb. Fatima-ul-Hasna) had not obtained from the District Judge the sanction to the transfer which it was necessary for her, as the certificated guardian, to secure. The Judge's sanction was not got till 25 September, 1924. Acting on the sanction so obtained, she executed a sale deed of the property in favour of Mt. Rifaqat-un-nisa on 23 of October 1924, i.e., three days after the Court sale. On 19 November 1924 the guardian of the minor judgment-debtors and Mt. Rifaqat-un- nisa presented a joint application to the execution Court under Order 21, Rule 89(1) praying that the auction sale should be sat aside. Tender of the sum required by the rule to be paid was made. It was represented that the property which has been sold was worth Rs. 7,000, while the price it had fetched at the auction was Rs. 1,200 only. It was prayed that if it should be held that Mt. Rifaqat-un-nisa, the purchaser, was incompetent to make an application under the rule in question, the application should be treated as made on behalf of the judgment-debtors and accepted accordingly. The Munsif to whom the application was made, following the judgment of a Bench of this Court, Ishar Das V/s. Asaf Ali Khan (1911) 31 All 186, rejected the application. He held that the judgment-debtors having transferred the property after the date of the Court sale and before the date of the application, could not apply as they had lost all their interest in the property. He further held that Mt. Rifaqat-un-nisa, as a subsequent purchaser under a private sale, was not entitled to apply to have the Court sale set aside.

(3.) The judgment-debtors appealed to the District Judge who, instead of deciding the appeal, has made this reference asking for the opinion of this Court regarding the true construction of Order 21, Rule 89. In his order of reference the District Judge points out that other High Courts have declined to accept the interpretation of this rule laid down in Ishar Das's case (1911) 31 All 186 above referred to.