MRINMAYEE RAY Vs. SREEPATI CHARAN DAS

JUDGEMENT

(1.) The only question that arises is whether the opposite party is entitled to make an application under Order 21, Rule 90, Civil P.C. That rule provides that besides the parties to the execution proceedings a person whose interests are affected by the sale may apply under that rule for setting aside the sale on the ground prescribed in that rule. The opposite party claims to be an adopted son of one Dayanidhi Das, one of the judgment-debtors in a decree of rent suit. There were three other judgment-debtors, Upendra Das, Antarjami Das and Sarheswar Das. The holding in question is entered in the name of Dayanidhi and the other three just named. The suit for rent was by a cosbarer landlord. The decree was passed on 8 July 1938. Dayanidhi Das, one of the judgment-debtors, died on 5th February 1989. The decree-holder took out execution against the judgment- debtors on the record but on the report of the peon for service of notice under Order 21, Rule 22, it was discovered that Dayanidhi Das had died before the petition of execution was filed. Therefore Dayanidhi's name was struck off the record on the application of the decree-holder. The execution proceeded against the remaining judgment-debtors and the entire holding was sold.

(2.) The opposite party made an application for setting aside the sale under Order 21, Rule 90. This was resisted by the decree-holder on the ground that the share of Dayanidhi Das in the holding was separately specified to be two annas, nine krants and as the execution did not proceed against him his interest in the holding is in no way affected by the sale. Therefore the opposite party was not entitled to maintain his application. The lower Court, however, rejected this contention and held the opposite party entitled to apply under Order 21, Rule 90, for setting aside the sale. Against that order is this civil revision application.

(3.) The learned advocate urged that the sale in regard to the interest of Dayanidhi Das in the holding is null and void and so the opposite party is not affected by the sale. In support of this contention reliance is placed on a decision of a Division Bench of the Calcutta High Court in Rampada Nag V/s. Kanai Rai A.I.R. 1926 Cal. 1219. That was a case in which sale was held in execution of a decree for rent under the Bengal Tenancy Act in ignorance of the death of one of the tenants and without impleading his legal representatives in his stead. The legal representatives applied under Order 21, Rule 90, Civil P.C., to set aside the sale. It was held that (1) that the sale was not only void but was valid to the extent of the shares of the judgment-debtors who were alive on the date of the sale, (2) that the interest of the deceased judgment-debtor was not affected by the sale and (3) that the legal representatives had no right to apply under Order 21, Rule 90, Civil P.C., to set aside the entire sale.