Patna High Court
Lachmi Narain Agarwala vs Kali Prosonno Bhattacharji And Ors. on 16 June, 1919
Equivalent citations: 52IND. CAS.344, AIR 1919 PATNA 465
JUDGMENT Mullick, J.
1. This matter arises out of the sale of two plots of land in the town of Dhanbad in execution of a rent-decree. After the sale an application was made under Order XXI, Rule 89 of the Civil Procedure Code, by the judgment-debtor to set aside the sale. The Subordinate Judge, without hearing the auction purchaser and the decree-holder, accepted the deposit and granted the prayer of the judgment-debtor.
2. The auction-purchaser then took the matter up in appeal to the District Judge, and it being discovered that the judgment-debtor was dead, he brought the heirs of the judgment debtor upon the record of the appeal. The order passed by the District Judge after hearing the parties was that the application should be reheard by the Subordinate Judge in the presence of the decree-holder, the auction-purchaser and all parties affected.
3. The case went back to the Subordinate Judge. The judgment debtor's heirs were apparently unwilling to prosecute the matter, or at any rate they did not take any steps to adduce evidence: but a private purchaser, the petitioner before us, subsequent to the sale came forward and put in a petition before the Subordinate Judge asking that he should be allowed to prosecute the application on behalf of the judgment debtor. That petition was made on the 7th January 1919, and the order made by the Subordinate Judge thereupon was that the application would be taken into consideration at the time of the hearing of the case.
4. It appears that thereafter the petitioner was allowed to deposit the various process fees necessary for service of notice upon the parties to the case and also to get summonses issued upon the witnesses for this purpose. It also appears that at the hearing he was allowed to file a document in support of the judgment-debtor's prayer and that his Vakil or Pleader was heard when the case was finally argued.
5. The result was that the Munsif, the case having been in the meantime transferred to his Court by the Subordinate Judge, dismiss-ed the application, holding that under Order XXI, Rule 89, it was not competent to the judgment debtor to make a deposit after he had already parted with his interest in the property by sale to a third party.
6. The petitioner then took the matter up in appeal to the District Judge, who affirmed the finding of law of the Court below and added a further ground for dismissing the appeal, namely, that the petitioner was entitled neither to support the application of the judgment-debtor nor to prosecute the appeal, inasmuch as he was not the legal representative of the deceased.
7. The present application has been made to us under Section 115 of the Civil Procedure Code against the order of the District Judge.
8. Now upon the point of law as to whether Order XXI, Rule 89, permit?) a judgment-debtor to make an application for the purpose of setting aside a sale, even though at the time of the application he has parted with his interest in the property, the decision of this Court in the case of Musammat Dhanwanti Kuer v. Sheo Shankar Lall 51 Ind. Cas. 873 : 4 P.L.J. 340 is conclusive. So far as this Court is concerned, it is settled for the present that the judgment-debtor in such a case is still competent to avail himself of the provisions enabling him to make a deposit.
9. It is contended, however, that as the petitioner had no locus standi in the Court of the Munsif, he ought not to have been allowed to appeal, and as the appeal was incompetent the order of the District Judge therein was a nullity, and, therefore, there is no order with which we can interfere in revision.
10. Now in my opinion the petitioner was not a person whom the Munsif should have heard. He, as the assignee after the sale, had no interest in the property: but that circumstance did not debar the Munsif from disposing of the application according to law. The Munsif had before him the judgment debtor's representatives who had been brought upon the record in the appeal; and indeed the law says that when a deposit is made the Court shall proceed to set aside the sale.
11. In this case, therefore, the proper course was to refuse to hear the petitioner, but to set aside the sale.
12. As for the contention that the order of the Appellate Court was a nullity, I do not think there is any substance in it whatsoever.
13. The Munsif though wrongly did in fact accept the petitioner as a party; the mere omission to enter the petitioner in the heading of the judgment or in the record as a party does not make any difference, The petitioner was allowed to adduce evidence to pay process fees, to address the Court, and to carry on the litigation on behalf of the judgment-debtor. He must, therefore, be held to have been in fact joined as a party in the proceedings before the Munsif. That being so, he had a right of appeal if he was affected by the order made by the Court. It was open, no doubt, to the District Judge to decide in the appeal that he ought not to have been allowed to appear before the Munsif, but it cannot be said that the appeal was incompetent by the petitioner because the petitioner was an entire stranger to the proceedings. It was open, no doubt, to the District Judge to hold as he has done that the petitioner was not a person entitled to relief, but it was incumbent upon him nevertheless to decide the other point in the case, namely, whether or not the deposit had been legally made by the judgment-debtor. His order, therefore, cannot be treated as a nullity and the petitioner is right in seeking to have it set aside. But even if it be held that the order is a nullity, the Munsif's order stands in the petitioner's way and is liable to revision by us.
14. Both Courts, in my opinion, refused to exercise jurisdiction in declining to accept the deposit from the judgment-debtor. The order of both will be set aside under Section 115 of the Civil Procedure Code.
15. It is said that the heirs of the judgment-debtor are no longer willing to have the sale set aside. There is no evidence of this. The mere omission on the part of the heirs to prosecute the application made by their predecessor before the Munsif is not conclusive upon the point. Even if the allegations ware true and they had after the sale to the petitioner sought to defraud him by siding with the auction-purchaser and intimated their unwillingness to have the sale set aside the Court could not have given effect to that fraudulent act. We have, however, nothing to show that the heirs are in fact unwilling, and, therefore, the proper order that ought to be made is that the deposit, if it complies with the provisions of the law, be accepted and the sale set aside. The application will be allowed with costs. Hearing fee two gold mohurs.
Jwala Prasad, J.
16. The deposit in this case was properly made by the judgment debtor under Order XXI, Rule 89. The judgment-debtor expressly stated his intention to have the sale set aside. The sale was accordingly set aside on the 16th August 191S. The judgment debtor in the subsequent proceedings died. The legal representatives of the judgment debtor are on the record and they do not object to the application having been made by the judgment-debtor to have the sale set aside. The mere silence of the heirs of the judgment-debtor cannot be construed as a withdrawal of the application made on behalf of deceased judgment-debtor. There does not appear, therefore, to be any alternative but to set aside the sale under Rule 92 of Order XXI. I agree, therefore, with the order made in the case by my learned brother and I also agree that the petitioner, the purchaser of the property by means of a private deed from the judgment-debtor, had no locus standi to make an application under Rule 89 of Order XXI, but that does not affect the position in the case that the sale must be set aside under the said order.