Bombay High Court
Ganesh Bab Naik vs Vithal Vaman Mahalya on 1 November, 1912
Equivalent citations: (1913)15BOMLR244
JUDGMENT Basil Scott, Kt., C.J.
1. The first point on this appeal is a preliminary point taken by the auction-purchaser that he was a necessary party to the application of the judgment-debtor under Order XXI, Rule 89, and that the application is bad as he was not made a party to it within thirty days. The contention is based upon the decision of the Allahabad High Court in Ali Ganhar Khan v. Bansidhar (1893) I.L.R. 15 All. 407. The point, however, is now provided for by the Civil Procedure Code of 1908, Order XXI, Rule 92, which says that where in the case of an application under Rule 89 the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale, provided that no order shall be made unless notice of the application has been given to all persons affected thereby. That cannot mean that notice must be given within thirty days of the date of sale, and the learned District Judge has, we think, exercised a right discretion directing that the auction purchaser should be made a party to the proceedings in the appeal before him under Order XII, Rule 20. Once notice has been given of the application under Rule 89 to all persons, the Court has full authority to set aside the sale. Those conditions now exist and we therefore have to consider whether the sale should be set aside.
2. An application was made by the judgment-creditor in the suit of Vithal Waman against Ganesh Babnaik for attachment and sale of certain specified immoveable property. The order for sale was dated the 4th of September 1909, the attachment having been six months previous. Subsequently the judgment-debtor applied that the proceedings should be sent to the Collector for execution of the decree. That can be done under Section 68 of the Civil Procedure Code which provides for the transfer to the Collector of the execution of decrees in cases in which a Court has ordered any immoveable property to be sold or the execution of any particular kind of decrees or the execution of decrees ordering the sale of any particular kind of interest in immoveable property. The proceedings in this case related to the first class of cases specified in Section 68 as a particular immoveable property had been ordered to be sold. The Collector proceeded with the sale but before the auction took place he received from the Court intimation of applications made by other decree-holders against the same judgment-debtor for rateable distribution under Section 73. The decrees were not " sent to him for execution but the Darkhasts or applications for rateable distribution were sent to him for information. On receipt of those Darkhasts he inserted references thereto in his proclamation of sale and the property was subsequently sold. Then within thirty days the judgment-debtor applied to have the sale set aside under Rule 89 on depositing in Court for payment to the purchaser a sum equal to five per cent, of the purchase-money and for payment to the decree-holder Vithal Vaman, "the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, namely Rs. 240-11-11. Although the result of this deposit will be to satisfy the judgment-debt of the creditor, he comes forward and objects to the application on the ground that the deposit is insufficient, because, he says, it is necessary that an amount should be-deposited sufficient to satisfy not only his decree, but also the claims of those decree-holders whose applications for rateable distribution have been brought to the notice of the Collector before the sale. It has been held in Calcutta in Hari Sundari Dasya v. Shashi Bala Dasya (1896) 1 C.W.N. 195 and in Roshun Lall v. Ram Lall Mullick (1903) I.L.R. 30 Cal. 262 that 'the decree-holder' in Section 310 A, class. (b), means, that person alone for satisfaction of whose decree the sale has been ordered, and does not include other persons who "(would have a right to claim rateable distribution out of the sale-proceeds under Section 295 or the present Section 73.
3. The Legislature in enacting the new Code has adhered to the words of Section 310 A which had been interpreted in this manner by the Calcutta Court. And not only is there that indication of the legislative approval of the view of the Calcutta Court, but in Rule 90 of the same Order we find that the Legislature has thought it necessary when it intended to refer to persons entitled to share in rateable distribution of assets, to do so specifically and not to include them in the term' decree-holder' according to the decisions in Bejoy Singh Dudhuria v. Hukunt Chand (1902) I.L.R. 29 Cal. 548 and Ajudhia Prasad v. Nand Lal Singh (1893) I.L.R. 15 All. 318. This is a strong indication that the term ' decree-holder' in Rule 89 ought not to be construed in the extended sense in which the judgment-creditor in this case for some reason, which is obscure, has argued it should be construed. It is moreover to be observed that Rule 89, Clause (b), provides for a deposit for payment to the decree-holder of the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. The only which answers to that description is the amount of the decree of Vithal Waman for Rs. 240-1 -ii The persons who claim rateable distribution are not before the Court, but the objection which they might have put forward has been argued on behalf of the judgment-creditor.
4. We set aside the order of the acting District Judge and pass an order setting aside the sale as provided by Order XXI, Rule 89
5. The judgment-creditor must pay the costs throughout. Bu' the order as to costs against the second respondent only) applies to the costs of the appellate Court. Costs against the 1st respondent costs throughout.