BEHARI LAL Vs. ALE NABI

JUDGEMENT

(1.) This is a first appeal from order by an auction-purchaser. The facts which have given rise to this appeal are quite simple. Chiraunji Lal had a decree against one Jagdish Prasad. In execution of this decree he put up for sale the immoveable property of the judgment-debtor. The sale took place on 2 September, 1931. The property was purchased by Behari Lal, applicant, who paid one-fourth of the sale price on that very date. The balance of the sale price was deposited in the Imperial Bank by Behari Lal on 11 September 1931. On this date Ale Nabi, who had a claim against Jagdish Prasad, judgment-debtor, obtained a decree and immediately took a transfer certificate and presented it to the Munsarim of the Court in which the decree of Chiraunji Lal was being executed. He made an application for rateable distribution of assets. It so happened that the Munsarim of the Court refused to accept the application on the ground that it had been made after 3 p. m. Ale Nabi made an application under Order 21, Rule 90, Civil P.C. praying that the sale in favour of Behari Lal should be set aside. The trial Court held that Ale Nabi was incompetent to make an application for setting aside the sale as he was not a person entitled to share in the rateable distribution of assets. The result was that the application made by Ale Nabi was dismissed.

(2.) Ale Nabi preferred an appeal against the decision of the First Court. The lower Appellate Court came to the conclusion that Ale Nabi was competent to make an application for setting aside the sale and, therefore, the appeal was allowed and the case was remanded for decision of the application made by Ale Nabi under Order 21, Rule 90, Civil P.C. Against the decree of the lower Appellate Court Behari Lal, the auction-purchaser, has preferred an appeal to this Court. A preliminary objection was taken by the respondent to the effect that no appeal lay to this Court against the order passed by the lower Appellate Court. Learned Counsel appearing for the appellant conceded to this point but prayed that this application may be treated as a revision, and having regard to the facts placed before us we have acceded to this request and we treat this appeal as an application in revision.

(3.) Behari Lal, auction-purchaser, had deposited the three-fourths price of the property which he purchased, in the Imperial Bank on 11 September 1931. On the same date Ale Nabi put in his application for rateable distribution, but it was not accepted by the Munsarim. In our opinion, it was a proper presentation, and it was the duty of the Munsarim to accept the application, in spite of the fact that it had been made after 3 p. m. An applicant has a right to put his application or complaint any time during the Court hours. The mere fact that the Munsarim refused to accept the application on the ground that it was made after 3 p. m. is no reason for holding that the application was not duly presented on 11th September 1931. Lower Courts make rules fixing time when applications of various types should be presented for the convenience of the Court as well as for the convenience of the public, but the legal right of every applicant is that he is entitled to make his complaint or application any time during Court hours. So, for the purpose of this case, we assume that the application for setting aside the sale by Ale Nabi was duly made by him on 11 September 1931, though it was not accepted by the Court till 12 September 1931.