KUSUM KUMARI LODH Vs. KUTISWAR BARAI

JUDGEMENT

(1.) The petitioners in this Rule are transferees from certain persons who purchased at a sale in execution of a decree against one Tarini and his two minor nephews, certain properties belonging to the said judgment-debtors. The sale took place on the 21 June 1922. In August 1922, Tarini applied under Order 21, Rule 90, Civil P.C. for setting the sale aside. That application was dismissed for default on the 11 November 1922, and thereafter the sale was confirmed on the 18 November 1912. On the 15 February 1924 the minors through their grand-uncle one Gayali Barui, made a further application for setting aside the sale under Order 21, Rule 90, Civil P.C. The Munsif dismissed the application, but on an appeal being preferred to the Subordinate Judge, the sale has been set aside.

(2.) The petitioners have obtained this Rule to show cause why the sale in so far as the share of Tarini is concerned should not be upheld. The first argument advanced on behalf of the petitioners is to the effect that Tarini's application under Order 21, Rule 90 having been dismissed, it was not open to the learned Judge to set aside the sale in so far as it affected his share in the properties sold, and that the order of the learned Judge should be limited to the share of the minors who were the applicants before him. This argument, though specious, is, in my opinion, not sound, and it overlooks the distinction between the scope of an application made by a fractional owner of a property under Order 21, Rule 90, Civil P.C., to set aside a sale and that of a suit by such owner to set aside a sale to the extent of his share or to have a declaration that the sale is void or invalid to the extent of his share. In an application under Order 21, Rule 90, Civil P.C. the question of the share of the applicant or of his co-sharers does not come in at all. Tarini's application was to set aside the entire sale. It was dismissed for default. It may be doubted whether Tarini could come up a second time and apply to set aside the sale.

(3.) This question arose in the case of Paresh Nath Mallik V/s. Hari Charan Dey [1911] 38 Cal. 622, where the applicant to set aside a sale had his application dismissed for default and after his application for restoration was refused applied again to set aside the sale; but the question does not appear to have been decided in that case. There can, however, be no doubt that an application by a co-judgment-debtor to set aside a sale is maintainable where similar applications by other judgment-debtors have proved infructuous. That was the view taken by this Court in the case of Jadoo Nath Chatterjee V/s. Aswini Kumar Banerjee [1912] 16 Cri.L.J. 98 which was a case in which the finding was that the new applicant, a minor, was a creature of the previous applicants who had failed. In an application under Order 21, Rule 90, the entire sale has to be dealt with, except where properties are sold in lota, in which case the sale of each lot is a separate sale, though all the properties are covered by one proclamation and one person may happen to be the purchaser of all the lots. There is, in my opinion, no reason why Tarini should not be permitted to benefit by the result of the proceedings taken by the minors in which the minors have succeeded in establishing the requisites which would vitiate a sale under Order 21, Rule 90, Civil P.C.