SATISH CHANDRA DE SARKAR Vs. RAKHAL CHANDRA SAHA

JUDGEMENT

(1.) This rule arises out of an application under Order 21, Rule 90, Civil P.C. which was filed on behalf of the judgment-debtors on the 4 April 1925 in connexion with a sale that had taken place on the 11 January 1922. In the application as originally filed the auction-purchaser was not made a party. He applied on 5 September 1925 to be made a party to the proceedings and on that day an order was made to the effect that he should be made a party. The application was dealt with on its merits by the learned Munsif of Narainganj who on 80th October 1925 set aside the sale and directed the decree-holder to take steps for re-sale of the property. From this order appeals were preferred by the judgment-debtors as well as by the auction purchaser and the result of these appeals was that the learned Additional District Judge of Dacca affirmed the order which the learned Munsiff had passed. The auction- purchaser had now moved this Court and obtained the present rule.

(2.) The question which arises in this rule is whether the application under Order 21, Rule 90, Civil P.C., was competent inasmuch as the auction-purchaser was not made a party therein till long after the prescribed period of limitation for such an application had expired. The question raised is one not free of difficulty. The learned Munsif was of opinion that there was no analogy between the addition of a party in a suit and that in an application under Order 21, Rule 90, Civil P.C. and that it would not have mattered in the least if the name of the auction- purchaser was not mentioned in the application. In his opinion all that is required by the law is that before the sale can be set aside or confirmed the notice of the application has to be served upon the auction-purchaser and that such notice should be given by the Court whether the applicant does or does not pray therefor. Upon a consideration of the relevant provisions of the Code I am inclined to agree with the learned Munsif in the view that he has taken. There are, however, conflicting decisions on this point in the different Courts. In the Patna High Court Mr. Justice Ross, sitting singly held in the case of Sumitra V/s. Damri Lall A.I.R. 1921 Patna 4987 that the auction purchaser is a necessary party to an application to set aside an execution sale, and where he is not made a party within the time allowed by the law for making the application, the application cannot be entertained The Patna High Court, however, in a very recent case has taken a contrary view. A Division Bench of tthat Court, in the case of Iswardas V/s. Biseswar Lal A.I.R. 1925 Patna 266 overruled the contention that was put forward on behalf of the auction-purchaser to the effect that it is necessary to have the parties affected by the application as parties to the application and held that the whole object of Rule 92, Order 21 is to provide that no adverse order be passed in the absence of the persons affected by the order and that in one sense all the decree-holders and the auction purchaser are to be treated as being parties to the proceeding inasmuch as their names are already on the record. The learned Judges purported to follow another decision of the same Court in the case of Bibi Zainab V/s. Paresh Nath A.I.R. 1924 Patna 37.

(3.) The Bombay High Court has held definitely in the case of Ganesh Bab V/s. Vithal Vaman [1912] 37 Bom. 387 that in a case under Order 21, Rule 89, Civil P.C. to which the same considerations would apply, although the auction-purchaser was a necessary party for the determination of the question which would arise under Order 21, Rule 92 Civil P.C. an application in which he was not made a party but which was filed within thirty days was not bad on the ground that he was not made a party therein. The same view appears to have been taken in Oudh Abdur Rahman V/s. Har Narayan Das A.I.R. 1922 Oudh 129. There is a decision of the Allahabad High Court under the Code of 1882 in which a contrary view was taken. That is the case of Aligauhar Khan V/s. Bansidhar [1893] 15 All. 407. It may be pointed out that this decision was by Mr. Justice Burkitt sitting alone. So far as this Court is concerned there is no case on the point reported in any of the authorized reports. There are, however, two unreported decisions one in the case of Ajeuddin Ahamed V/s. Khoda Bux [1919] 500 I.C. 5 and also a decision in Civil Rule No. 950 of 1923 in which it has been held that an application under Order 21, Rule 90 Civil P.C. though made within the period of limitation prescribed for such an application is bad if the auction-purchaser has not been made a party therein. These two decisions, therefore, take a view contrary to that which the learned Munsif has taken and were it not for the reasons which I am about to state and on account of which I do not consider this case to be one which calls for our interference it would have been necessary for me to follow these two decisions although I may say, as I have already said, I do not agree with them. I may state here that for myself I am inclined to take the same view of an application like this as was taken of an application under Section 105, Ben. Ten. Act, in the case of Bir Bikram Kishore V/s. Ambika Charan A.I.R. 1926 Cal. 1037.