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Balkrishna Vaman Kharkar Vs. Sakharam Habaji Mestry - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Civil Revision Application No. 127
Judge
Reported inAIR1936Bom311; (1936)38BOMLR589
AppellantBalkrishna Vaman Kharkar
RespondentSakharam Habaji Mestry
Excerpt:
.....procedure code (act v of 1908), order xxi, rules 90, 91 - ' whose interests are affected by the sale '-auction purchaser not included in the expression- omission to mention incumbrance in proclamation of sale.;the expression 'any person... whose interests are affected by the sale' in order xxi, rule 90, of the civil procedure code, 1908, means any person whose interests are affected by reason of the property being sold, that is, by reason of the fact that a person has interest in the property which would be affected if it is sold, and does not include the auction purchaser.;hence, an auction purchaser is not entitled to apply under order xxi, rule 90, to have the sale set aside on the ground that a mortgage existing on the property was not disclosed in the proclamation of..........sale, a mortgage existing on that property was not disclosed and the property was purchased by the auction-purchaser without the knowledge that the property had been previously mortgaged. then the auction-purchaser filed an application under order xxi, rule 90, to set aside the sale. that rule runs thus :where any immoveable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.2. the question therefore is whether an auction-purchaser can be said to be a person whose interests are affected by the sale because of a material irregularity.....
Judgment:

Divatia, J.

1. This application raises an important question relating to the construction of Order XXI, Rule 90, Civil Procedure Code, on which there has been a difference of opinion in the Indian High Courts and on which there is no authority of this Court. The point arises in this way. A decree directing a sale of an immoveable property was passed and the decree-holder applied to execute the decree. It appears that in the proclamation of sale, a mortgage existing on that property was not disclosed and the property was purchased by the auction-purchaser without the knowledge that the property had been previously mortgaged. Then the auction-purchaser filed an application under Order XXI, Rule 90, to set aside the sale. That rule runs thus :

Where any immoveable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.

2. The question therefore is whether an auction-purchaser can be said to be a person whose interests are affected by the sale because of a material irregularity or fraud in publishing or conducting it. Both the lower Courts have held that the auction-purchaser is a person whose interests are so affected and that therefore he can apply for setting aside the sale.

3. In this application it is contended on behalf of the judgment-creditor that that decision is wrong, that the Court had no jurisdiction to entertain the application, that the case of the auction-purchaser is governed not by Rule 90 but by Rule 91 which says :

The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

4. The latest case on this point is of Mahadev Ram v. Raja Mohan Vikram Sah I.L.R.(1933) Pat. 665. There two out of three judges in a special bench were of the opinion that an auction-purchaser is a person ' whose interests are affected by the sale ' within the terms of Rule 90, while one learned Judge dissented from that opinion and held that he did not come within that expression. Two former decisions of that High Court, viz., Khetro Mohan Datta v. Sheikh Dilwar (1918) 3 P. L. J. 516 and Kartick Chandra Chatterji v. Nagendra Nath Roy : AIR1924Pat319 (1) were dissented from and the decision in Ravinandan Prasad v. Jagarnath Sahu I.L.R. (1925) All. 479 and Gopalakrishnayya v. Sanjeeva Reddi (1919) 38 M.L.J. 228 were followed by the majority, while the dissenting Judge followed the decisions in Surendra Nath Das V. Alauddin Mistry : AIR1928Cal828 K. V. A. L. Chettyar Firm v. M. P. Maricar I.L.R (1928) . Ran. 621 and Nihal Chand-Gopal Das v. Pritam Singh I.L.R(1932) Lah. 1.

5. It appears that the expression ' any person whose interests are affected by the sale' has been substituted for the corresponding expression in Section 311 of the Code of 1882 : ' any person whose immoveable property has been sold under this Chapter ', and on this wording in the old section it was held in Birj Mohun Thakoor v. Rai Uma Nath Chowdhry by the Privy Council that that section did not apply to an auction-purchaser. It appears that the legislature has changed the words in Rule 90 of the present Code to include not only the judgment-debtor; i.e. the person owning the property, but also all those persons whose interests in the property would be affected by its being sold, e.g., a person having a lien on the property for maintenance, and who can therefore be equally interested in setting aside the sale. The view that an auction-purchaser comes under the phrase ' any person whose interests are affected by the sale ' is based upon the generality of the expression and the probability of his taking a defective title under an irregular or fraudulent sale, and thus being adversely affected by the sale. The other view is that a person can only be affected by a sale if, previous to or at the time of the sale, he has got some interest in the property, that only those persons who are thus interested in the property can come under this rule, and the auction-purchaser is not such a person, as his rights come into existence after the sale, and that his case is separately provided for in Rule 91. An auction-purchaser gets only those rights which are conveyed to him in the sale-certificate and there is no guarantee of title. His remedy may be to institute a suit on the ground that he has been defrauded, but the summary remedy given under Rule 90 is not meant for him. I think there is great force in the latter view taken by the Calcutta as well as the Lahore and Rangoon High Courts, and formerly adopted by the Patna High Court, namely that an auction-purchaser is not a person whose interests are affected by the sale. The expression ' affected by the sale ' means affected by reason of the property being sold, that is, by reason of the fact that a person has interest in the property which would be affected if it is sold. This construction seems to me to be in consonance with the general scheme of rules relating to execution of decrees, especially Rules 89, 90 and 91, and the words of Rule 90 taken in their context. I am, therefore, of opinion that the application by the auction-purchaser is not competent and the Court had no jurisdiction to entertain it under Rule 90.

6. The order of the lower Court is set aside and the rule is made absolute with costs throughout.


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