RY RAJARAM RAJA SAHEB Vs. TRBHAWANI SANKER JOSHI

JUDGEMENT

(1.) This is a large batch of appeals concerned with, the execution of the decree against defendants 3 to 6 in C.S. No. 10 of 1926, the sons of the senior prince of Tanjore. There were eight sales of property in execution of this decree and 16 petitions to set aside those sales under Order 21, Rule 90. The judgment-debtors themselves filed eight of these petitions and the others were filed by an attaching decree-holder. The learned District Judge of Tanjore has dismissed all these petitions and these are appeals against his order.

(2.) When the petitions came on for hearing, no evidence was taken as it was represented on behalf of the auction purchasers that the petitions ought to be dismissed on the allegations contained in the pleadings and on the admitted facts in the case. The learned District Judge appears to have accepted that point of view and therefore heard the petition upon arguments only and without taking any evidence. He has however dismissed the petitions on various grounds, the first of which was that neither the judgment-debtors, nor the attaching decree-holders were entitled to file the applications under Order 21, Rule 90 at all. The learned Judge refers to the words of that rule, that it is only the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale who can apply to the Court to set it aside, and he went on to find that the judgment-debtors and the attaching decree-holder were not persons interested in the result of the sale because in addition to the mortgage upon which the suit was brought in which this execution has taken place, there were further mortgages amounting to seven or eight lakhs of rupees. It was therefore in the view of the learned District Judge impossible that any money would be available for any other person than those mortgagees. Therefore even if a higher amount might be fetched by the resale, none of that amount could possibly reach the pockets of the present appellants and therefore their interests could not be said to be affected by the sale. We are unable to accept this reasoning. It appears to us too obvious to require any discussion that a judgment-debtor and an attaching decree-holder are persons whose interests are affected by the sale and it is clear further that it is only after evidence has been taken and any thorough investigation made by the Court into the position of the judgment-debtors estate that the Court can ever come to the conclusion that the judgment-debtors or any attaching decree-holder can receive no financial benefit whatever from the result of their applications. We think that if the learned District Judge had been able to establish on the evidence that there could be no substantial injury afforded to the petitioners by the low amount fetched at the sale on the ground that even if a proper amount had been fetched no money would have been available for them, then his order might have been justified under the terms of Order 21, Rule 90. But it is quite clear that the present appellants were persons whose interests prima facie were affected by the sale. We therefore disagree with the learned District Judge in regard to that particular reason for dismissing the applications.

(3.) The learned Judge then goes on to discuss the other questions raised by the petitioners and has come to the conclusion in his judgment that none of those contentions are valid. It has been strenuously argued before us that the learned Judge ought to have confined his order to the maintainability of the petitions alone and that in the absence of evidence he would not be justified in giving any findings upon the other points raised by the petitioners. This as an academical argument is one against which we say nothing, but upon examination of the contentions themselves we feel bound to say that we consider the learned District Judge was perfectly justified in dismissing the applications. There are three main contentions raised. The first is that the upset price, owing to the fraud practiced upon the Court by the decree-holder, was fixed at a ridiculously low figure in regard to all the items that were put up for sale. We are unable to see how this matter is a material irregularity which can cause any substantial injury to the appellants. It seems to us obvious that the lower the upset price on valuable land is put, the greater is the inducement for intending bidders to come and bid. The real injury suffered by the appellants if they ever suffered any injury, is obviously due to the failure of any bidders to come and bid against the decree-holder or auction purchasers, and as we have said we are unable to see how the fixing of an upset price can have possibly affected the intention of such bidders.