VOOTLA VIRIAH Vs. TADEPALLI SUBBA RAO (DIED)

JUDGEMENT

(1.) This appeal arises out of the dismissal of an application, under Order 21, Rule 89, Civil Procedure Code filed by the appellants herein, before the lower Court for setting aside a sale in which the contesting respondents 7 and 8 were the purchasers of certain items of property sold in execution of the decree in O.S. No. 77 of 1910 on the file of the District Court of Kistna. The learned Subordinate Judge of Baptala held that the appellants as petitioners in the Court below did not have any interest in the property sold so as to entitle them to apply under the provisions of Order 21, Rule 89, and dismissed the application.

(2.) A few facts have to be stated in order that the position may be understood, clearly. The properties which are the subject matter of the sale belonged to one Nawab Hassanali Khan Bahadur and were sold by him under Ex. P-1 dated 5th. February, 1920 to the first appellant and the father of the second appellant herein for a sum of Rs. 45,000; but prior to that, there was a suit against this Nawab Hassanali Khan Bahadur and others (O.S. No. 77 of 1910) in which the plaintiff obtained a decree for a sum of money against him. In execution of that decree, the decree-holder attached these properties whereupon the first appellant and the father of the second appellant filed an application under Order 21, Rule 58 stating that the property should not be attached because the judgment-debtors had no saleable interest in the property. The executing Court allowed the claim, whereupon the decree-holder filed O.S. No. 8 of 1924 on the file of the lower Court for a declaration that the suit properties were liable to be attached in execution. of his decree. The trial Court dismissed that suit, but the same was taken on. appeal to this Court (A.S. No. 131 of 1926) and was disposed of by a Bench of this. Court on 4 April, 1929 (Ex. D-5) by which the decree of the lower Court dismissing the suit was set aside, and it was held that the decree-holder plaintiff was, entitled to a declaration that the sale deed Ex. P-1 dated 5 February, 1920 was; not binding against him. Thereafter the decree-holder continued the execution proceedings in which the properties were sold and respondents 8 and 9 in the lower Court, who are the contesting respondents here, purchased them. After that, the present appellants consisting of one of the original purchasers under Ex. P-1 and a son of the second purchaser, as well as the alienees from them of different portions of the property deposited the amount and applied to the lower Court for setting aside the sale under Order 21, Rule 89, Civil Procedure Code.

(3.) Various contentions were raised before the learned Subordinate Judge of which, the contention whether the different petitioners acquired any right by the sale deed, Ex. P-1 in the various items was decided in favour of the petitioner. But the lower Court on an interpretation of the decision of this Court mentioned above as well as certain orders made in execution proceedings in certain other suits came to the conclusion that the petitioners appellants had no saleable interest in the property in order to enable them to file a petition for setting aside the sale. The question therefore for decision is whether the petitioners have any saleable interest or not. The learned Judge construed Ex. D-5, as a decision which estopped the petitioners from contending that they had any right or interest in the attached property. The decision of the learned Judge on this point cannot be supported. In Dhanammal v. Veeraraghava Naidu (1922) 44 M.L.J. 325 Spencer and Venkatasubba Rao, JJ., have laid down that where on an application under Order 21, Rule 89 to set aside an execution sale on payment of the prescribed amount, it was found that the applicant had already unsuccessfully applied to stop the sale on payment of the decree amount and had also put in a claim petition under Order 21, Rule 58 which had been dismissed, the proceedings under Order 21, Rule 58 which had been dismissed, did not bar the application for setting aside the sale under Order 21, Rule 89. Spencer, J., at page 327 observes as follows: The effect of the dismissal of the petitioner's claim petition was not to decide finally that the petitioner had no interest to ask that the sale should be set aside on payment of the decree amount plus five per cent into Court but only to decide that she had no right to have the attachment raised. These are two very different things. The first (that under Rule 89) may imply the existence of an interest of a judgment debtor owning the property sold or an interest derived from the same source as the owners of an interest paramount to the judgment-debtor s; the second (that under Rule 58) implies the existence of a right independent from and antagonistic to the judgment-debtor s. It is impossible to conceive how the dismissal of the claim petition could operate as res judica to prevent the admission of an application to pay the decree amount and get the property released after the sale. Venkatasubba Rao, J., also came to the same conclusion but expressed the further opinion that Order 21, Rule 89 should be liberally construed and a restricted interpretation should not be put upon the words of that rule. This decision, so far as we are aware, has not been dissented from in this Court, and it applies directly to the facts of the present case.