KANDASWAMI KOUNDAN Vs. SANNI KRISHNAMA NAIDU

JUDGEMENT

(1.) Petitioner who was not a party to the decree filed an application under Order 21, Rule 89, Civil Procedure Code, to set aside a Court sale in execution. The District Munsif and the District Judge in appeal concurred in finding that the petitioner had no locus standi to file such an application as he was neither the judgment-debtor nor a person deriving title from him nor any person holding an interest in the property and dismissed his application.

(2.) The facts are briefly these. The judgment-debtor is stated without contradiction by the other side to be an old man of about 80. The Court sale in execution of the decree against him was held on 14 October, 1947, at which a house belonging to him in Dharapuram was sold for Rs. 1010. On 27 October, 1947, the judgment-debtor executed a usufructuary mortgage of some other property, the mortgage specifically reciting as part of the consideration a sum of Rs. 1,500 which the mortgagee had to deposit in the executing Court. What is most important is a specific direction in this mortgage deed to the petitioner to pay this money into Court and to get this house released from attachment. In accordance with, this direction, the petitioner filed an application under Order 21, Rule 89, on the 10 November, 1947, making the full deposit required by that section. The point for consideration is whether his application was maintainable.

(3.) It is in the first place urged that the petitioner was an agent of the judgment-debtor and in this capacity made the deposit. Reliance is placed on Hanumayya V/s. Bapanayya which held that it was sufficient if the deposit was made through an agent and the personal attendance of the judgment-debtor when depositing the money is not necessary. Mr. Desikan for the respondent concedes this position, but urges that the application under Order 21, Rule 89, by the petitioner is not maintainable and that in the circumstances it was only the judgment- debtor who could have filed it. He contends further that the petitioner can in no sense be considered a recognised agent within the meaning of Order 3, Rule 2, Civil Procedure Code, as he is not the holder of a power of attorney. These technical positions can be met by counter technical positions, I. think, to the advantage of the petitioner. The facts of this case are peculiar and not on all fours with those in Krishnama Naicker V/s. Sivasami Chetti , on which Mr. Desikan relies to refute the petitioner's possible position as a person who holds an interest in the property. The facts there were really quite different as the person who applied to set aside the sale had purchased some other property from the judgment-debtor or long prior to the Court sale and under his sale deed he merely had to deposit the price towards the decree. He made one or two deposits in driblets, then the property was brought to sale and afterwards he sought to come up with an application under Order 21, Rule 89, Civil Procedure Code, to set aside the sale as one interested in the property. His application was ultimately dismissed and if I may say so with great respect to the Bench, quite rightly. There were some observations in that decision to the effect that the interest in the property contemplated by this rule is an interest in the very property the sale of which is sought to be set aside and that indirect interest is not sufficient. In view of the facts being different here, I am inclined to the view that in view of the specific direction and obligation imposed on petitioner in this registered mortgage, he cannot be held to be a person who does not have an interest in the property brought to sale. If he failed to make the deposit and get the attachment on it set aside, his usufructuary mortgage, would have failed for partial lack of consideration and from this point of view he was interested in getting the sale of this property set aside and its attachment raised.