BULANDA BASHINI DASI Vs. PRAN GOVINDA DHAR

JUDGEMENT

(1.) The Secretary of State for India in Council, who is opposite party 2 in this rule, obtained a decree for rent against opposite parties 3 and 4, Hatu Dutta and Sudhangsu Bhusan Dutt. In execution of his decree the defaulting holding was sold and purchased by the petitioner, Bulanda Bashini Dasi, on 27 May 1935. It is this sale that the opposite party 1, Pran Gobinda Dhar, wanted to set aside by making a deposit under the provisions of Sub-section 1, Section 174, Tenancy Act. His application for setting aside the said sale was refused by the 1st Court but has been allowed by the lower appellate Court, and the said sale has been set aside. The question raised in this rule is whether the Court had jurisdiction to entertain the said application of opposite party 1. This question depends upon the question as to whether he is a person whose interest has been affected by the rent sale.

(2.) The answer to this question depends upon the following facts which are not disputed by any of the parties to this rule: Opposite party 1 had obtained a money decree against opposite parties 3 and 4. He applied for execution of his decree. An order for attachment of the holding in question was passed in the proceedings for execution of his decree on 23 May 1935, that is four days before the rent sale, but the property was actually attached after it, that is on 21 June 1935. He made the application under Section 174 (1) and made the deposit as required by that section on 22 June, 1935. It is now settled law, so far as this Court is concerned, that an attaching creditor, who has attached in execution of his decree, has the right to apply to set aside a sale under Order 21, Rule 90, of the Code, which contains the same words namely "whose interests are affected by the sale" as occur in Section 174 (1), Tenancy Act. But it is said by the learned advocate appearing for the petitioner that the fact of attachment alone in execution of a decree gives him the locus standi to apply for setting aside the sale under the provisions of Order 21, Rule 90, of the Code, or Section 174, Tenancy Act, according as the sale is under the Code or the Tenancy Act. It is necessary to examine in this case the said contention and the precise principle.

(3.) In my judgment a person who has a proprietary or possessory interest existing at the date of the challenged sale, which would be affected by it, has the right to apply to set aside the sale under Order 21, Rule 90 of the Code, or Section 174, Tenancy Act. That is the simplest case. But a creditor who has attached the property in execution of his decree for money is a person who has got no proprietary or possessory interest therein. But he has a pecuniary interest therein, because it is the property to which he looked for the satisfaction of his decree. He has the right to its preservation in the same state and can sue if a third party by wrongful acts destroys it or diminishes its value, Sankaralinga V/s. Kandaswami (1907) 30 Mad 413; for such wrongful acts would ultimately affect the price that the property would fetch at the Court sale, the price which would have been the means of satisfaction of his decree. If it is sold in execution of another's decree, he, having the right of rateable distribution is entitled to see that it has been sold not at an inadequate price by an irregular or fraudulent sale, for, more the price fetched the more would be his share in the rateable distribution. If he has not the right to claim rateable distribution, the surplus sale proceeds, after satisfying the claim of the decree-holder at whose instance the property was sold, would be available to him, and the more the price fetched the more would be the surplus. He has therefore a pecuniary interest affected by an irregular or fraudulent sale which had fetched an inadequate price by reason of the irregularity or fraud. It is on this principle and this principle only, namely, that his pecuniary interests are affected, that his right to apply for setting aside the sale, is in my judgment, based on Venkatesha Kamathi V/s. Villa Bhakta 1933 Mad 455, and I consider that this is the only principle on which his right so to apply has been supported in Dhirendra Nath Roy V/s. Kamini Kumar Pal 1924 Cal 786. Page, J. expressly puts the case on the said principle alone. Suhrawardy, J. also states the principle in that way at p. 498 of the report. When he says that an attaching creditor has an interest in the sale of the property or in the property itself, he means that he has a pecuniary interest therein, because he looked to the property for the satisfaction of his money decree, which was sold at the instance of another creditor of the same judgment-debtor. That is also the basic principle underlying the decision in Sankaralinga V/s. Kandaswami (1907) 30 Mad 413 as I have indicated above, on which Suhrawardy, J. relies for his support.