Patna High Court
Musammat Sumitra Kuer vs Damri Lall And Ors. on 18 March, 1921
Equivalent citations: 62IND. CAS.61, AIR 1921 PATNA 498
JUDGMENT Ross, J.
1. This is a petition by the judgment-debtor for revision of an order passed by the Subordinate Judge of Gaya dismissing an appeal from the decision of the Munsif of Gaya, dismissing an application to set aside a sale under Order XXI, Rule 90. That application was made within time but was defective, in that the judgment-debtor failed to make either the son of the decree-holder or the auction-purchaser a party to it. Petitions to add their names were made after the period of limitation had expired.
2. It is contended now that, as regards the son of the decree holder, he was sufficiently represented by his father; that the auction-purchaser, though not made a party, was named in the paragraph 5 of the petition and, in any case, the application was a good application and it was not necessary to make the auction purchaser a party within a period of limitation. I do not think it necessary to express any opinion about the son of the decree holder. The fact that the auction-purchaser was named in the course of the petition cannot cure any defect of parties. He was not made a party to the application.
3. The only question, therefore, is whether the application was a good application or not. It is argued that all that is required by Order XXI, Rule 92, is that before an order setting aside a sale is made, notice of the application is to be given to all persons affected thereby; and that consequently it is sufficient if notice is given to such persons before the order is made, even though the notice be given beyond the time limited by law for the application itself. This construction involves the result that the whole enquiry might be held in the absence of the persons most affected and if the notice thereafter given was to have any effect at all, the proceedings would have to start afresh. I am unwilling to suppose that that could have been intended by the Legislature. But the matter has been considered by the Calcutta High Court in the case of Ajiuddin Ahamed v. Khoda Bux Khondkar 50 Ind. Cas. 5, where this precise point was dealt with and it was held that where one only out of two auction-purchasers had been made a party to the application, the application was one which the Judge had no jurisdiction to hear.
4. I must, therefore, hold that the application was not a good application and that the Court had no jurisdiction to entertain it. It is true that a different view was taken in Ganesh Bab Naik v. Vithal Vaman Mahalya 19 Ind. Cas. 476 : 37 B. 387 : 15 Bom. L.R. 244, but in any case. I prefer to follow the Calcutta decision.
5. The application is dismissed with costs.
6. Hearing fee two gold mohurs.