HARIDAS Vs. MOFATLAL

JUDGEMENT

(1.) 1. The appellants are not legal representatives of Indar Singh, who had filed an application in the Court of First Sub-Judge, First Glass, Khamgaon for setting aside the sale of the property which was sold in execution of the decree obtained by Mofatlal Manilal against Shamsbere Ali. The learned Subordinate Judge held that no fraud or irregularity as contemplated in Order 21, Rule 90, Schedule 1, Civil P.C. was established and dismissed the application. This appeal was filed on 16th June 1927, but the auction purchaser Inayat Ali was not made a party to it. Applications were filed on 20th November 1928 and 22nd November 1928 asking this Court to add the auction-purchaser as a respondent and the applications were rejected on 5th April 1929.

(2.) THE question for consideration now is whether the sale which was confirmed on 5th April 1927 in favour of the auction purchaser can now be set aside in this appeal, in which appeal the auction purchaser is not a party. The learned advocate for the appellants argues that in this appeal the auction purchaser is not a necessary party because he is represented by the decree-holder and the judgment-debtor who are respondents in this appeal and he cites Sunderabai v. Shrikisan A.I.R. 1924 Nag. 328 in support of his contention. That decision does not support the point urged, and clearly lays down that: whether an auction purchaser is a representative of the decree-holder or judgment-debtor depends upon the nature of the conflicting interests or questions raised and who the contesting party is, and varies according to the facts involved in each case.

(3.) IT is further contended that the auction purchaser is not, in any case, a necessary party, and reliance is placed on a decision of the Calcutta High Court in Surendra Mohini Debi v. Laharam Chattopadhya [1912] 39 Cal. 687 in which Brett and Carnduff, JJ. observed as follows: So far as this Court is concered, no authority has been produced before us to support the contention that the auction purchaser is a necessary party to an application under Section 311, old Civil P.C., and the reasons given in the decisions of the Allahabad Court, to which we have referred, do not appear to us to be based on sound or sufficient grounds.