AYYAPPA NAICKER Vs. KASIPERUMAL NAYAKAR

JUDGEMENT

(1.) This petition raises the question whether a person who has obtained an attachment before judgment is a person whose interests are affected within the meaning of Order 21, Rule 90 of the Civil Procedure Code, when the property attached has been sold in execution of a decree obtained by another person. On the 30 November, 1932, the petitioner obtained an order for attachment before judgment in respect of certain immovable property belonging to the second and third respondents and on the 3 July, 1933, a decree was passed in his favour. Some three weeks before the decree was passed the first respondent caused the attached property to be sold in execution of a decree which he had obtained against the second and third respondents. On the 8 July, 1933, the petitioner filed a petition in the Court which had ordered the sale (the Court of the District Munsif of Tuticorin) asking that the sale should be set aside on the ground that there had been material irregularity. The District Munsif held that the petitioner was not a person who came within the section and dismissed the application. The petitioner appealed to the Subordinate Judge of Tuticorin, who agreed with the District Munsif. The petitioner has now asked this Court to set aside the orders of the lower courts under its revisional powers. It is not disputed that if the lower Courts erred in the interpretation of Rule 90 this Court has power to interfere.

(2.) Rule 90 provides that where any property has been sold in execution of a decree the decree-holder or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. Section 311 of the Code of 1882 which is now Rule 90 limited the right to apply to the decree-holder or any person whose immovable property had been sold. There has been much judicial discussion on the meaning of the words "whose interests are effected by the sale." Some Judges have expressed the opinion that these words must be taken to refer to a person having a proprietary or possessory title in the property, but the opinion which now prevails is that the words do not have this narrow implication and are intended to apply also to a person whose pecuniary interests are affected by the sale.

(3.) In Kathiresan Chettiar V/s. Ramasami Chettiar , a Division Bench of this Court composed of Sadasiva Aiyar and Napier, JJ., held that a decree-holder who had not applied for execution, and therefore, was not entitled to rateable distribution of the proceeds of the sale was not a person whose interests were affected by the sale within the meaning of the rule. They considered that the intention of the Legislature was to confine the word "interests" to an interest in the property sold. As I have indicated, this interpretation is not in accordance with later decisions. The meaning to be given to the words was fully discussed by Srinivasa Aiyangar, J., in Narayanan V/s. Pappayi . In that case the Court directed that two items of property which were the subject-matter of a mortgage decree should be sold first and that only afterwards, if the sale proceeds proved insufficient, should another item of property which was covered by the same decree be sold. After the passing of the decree the fourth defendant in the suit purchased the item of property which was to be sold last. He died before the other two items were sold in execution of the decree. After they had been sold his legal representative applied for an order setting aside the sale on the ground of irregularity and fraud. The learned Judge held that the legal representative of the fourth defendant was a person whose interests were affected by the sale. He refused to accept the contention that the expression "whose interests are affected by the sale" should be construed as though it meant that the petitioner must have some interest in the property itself and observed that, when the Legislature intended that the petitioner should have some interest in the property itself it has used apt language. He pointed in this connection to the provisions of Order 21, Rule 89, which limits an application under that rule to the judgment-debtor or any person deriving title from him or any person holding an interest in the property. The learned Judge considered that the Legislature intended to confer the right to apply on any one who is directly and immediately affected by the sale and with this opinion I am in entire agreement.