NARAYANA SAHU Vs. KRALETI PENTAMMA ALIAS APPALANARASIMHAM

JUDGEMENT

(1.) This matter has been posted before a Bench owing to the absence of any clear ruling in this Court on the point involved, i.e., whether in an application to set aside a sale under Order 21, Rule 92 read with Rule 89 which is otherwise in order and in time the omission to implead the auction-purchaser till after the expiry of 30 days allowed for the application is fatal to it. The facts are simple and undisputed. Property was sold in execution of a decree on 12 April, 1926. On 28 April, 1926, the defendant's pleader filed a lodgment schedule mentioning in the cause-title the names of the plaintiff (decree-holder) and defendant (judgment-debtor) and the auction-purchaser who was the decree-holder's son and praying for an order to deposit the amount required by Order 21, Rule 89 and stating that the amount was deposited for setting aside the sale. The challan was accordingly issued and the amount was deposited on 11 May within 30 days. The Court had been closed from 2 May, and reopened on 14th June, on which day the defendant filed a petition headed Order 21, Rule 2, showing in the cause-title the names of the plaintiff and defendant only, but for some reason, probably by inadvertence, omitting the name of the auction-purchaser and stating that the proper amount had been deposited in the Treasury as per receipt produced and praying that full satisfaction of the decree may be entered and that the sale should be set aside. The plaintiff to whom notice of this application was sent raised various objections most of which were unfounded, e.g., that the sum due was not deposited and the application was not filed in time, but he also raised the objection that the auction-purchaser (his own son) had not been impleaded. Thereupon notice of the application was sent to the auction-purchaser also and served on 30th June, 1926, some days after the expiry of the 30 days allowed for application under Order 21, Rule 92. The District Munsif held that the deposit was in time and set aside the sale. The learned District Judge confirmed the order.

(2.) In this Court the only point pressed is that it is necessary in applications under Order 21, Rule 92, that the party to be prejudicially affected by the order, e.g., the auction-purchaser, should be impleaded and notice sent to him and that unless the applicant has impleaded the auction-purchaser within the time allowed the application is time-barred and unsustainable. Our difficulty in deciding the question on the words of the relevant rules themselves which should be the ultimate basis of decision on such a question, is the wealth of conflicting judicial opinion on it. The petitioner's advocate referred to the following cases in his favour:--Ajiuddin Ahamed V/s. Khoda Bux Khondkar (1919) 50 I.C. 5 Sumitra Kucr V/s. Damri Lall (1921) 62 I.C. 61, Karamat Khan V/s. Mir Ali Ahmed (1891) A.W.N. 124 and Khoda Bux V/s. Sadu Pramanick (1910) 14 Cal. L.J. 620 at 625. The respondent's advocate referred to the following decisions contra:--Ganesh Bab Naik V/s. Vithal Vaman (1912) I.L.R. 37 Bom. 387 Raj Chdndra Das V/s. Kali Kanta Das A.I.R. 1923 Cal. 394, Mussammat Bibi Zainub V/s. Paras Nath (1923) I.L.R. 2 Pat. 800, lswardas Marwari V/s. Bisewar Lal (1925) 94 I.C. 31, Satish Chandra De Sarkar V/s. Rakhal Chandra Saha (1927) 47 Cal.L.J. 62 at 64, Haji Muhammad V/s. Ghulam Hussain Khan A.I.R. 1927 Lah. 681 and Kirpa Ram Vs. Nand Lal A.I.R. 1928 Lah. 413. In our own Court there are no reported decisions but reference has been made to A.A.O. No. 19 of 1919 in which the learned Judges differed.

(3.) In our opinion all that Order 21, Rule 92 read with Rule 89 requires before an order setting aside a sale is made is, (1) an application within the time allowed praying that relief; (2) deposit in Court of the sum required by Rule 89 (1)(a) and (b) within the time allowed; and (3) notice of the application to all persons affected, of whom the auction-purchaser is one. There is nothing in the rules themselves which requires that the names of the parties affected including that of the auction-purchaser should be contained in the application or added within any particular time, although nominally it is the usual, because the most convenient, plan for the applicant to mention those of them whom he knows at once in the application so that notice may go to them without delay. In Ganesh Bab Naik V/s. Vithal Vaman (1912) I.L.R. 37 B. 387 the auction-purchaser was not made a party to the original application or to the appeal though notice was issued to him by the first Court and he was added as party to the appeal under Order 41, Rule 20. On this point the Bombay High Court observe (p. 390) that according to Order 21, Rule 92, Where in the case of an application under Rule 89 the deposit required by that rule is made within 30 days from the date of the sale, the Court shall make an order setting aside the sale provided that no such order shall he made unless notice of the application has been given to all persons affected thereby. That cannot mean that notice must be given within 30 days of the date of sale.