1. The question in this application is whether the holder of a money decree who has attached immovable property before it was sold by the mortgagee decree-bolder is a person 'holding an interest therein by virtue of a title acquired before such sale' within the meaning of Order XXI, Rule 89, Civil Procedure Code.
2. The mortgagee obtained his mortgage decree and the opponent subsequently his money decree. The opponent filed his darkhast and subsequently the mortgagee filed his darkhast. On August 26, 1928, the opponent attached the property put up for sale. On October 15, 1928, the mortgagee decree-holder brought the property to sale in execution of the mortgage decree, and it was purchased by the petitioner. The opponent applied under Order XXI, Rule 89, with the necessary deposit, to have the sale set aside, on the ground that as an attaching creditor he 'held an interest therein by virtue of a title acquired before such sale? The lower Courts upheld the contention of the opponent and allowed the application. The auction purchaser applies in revision.
3. It is argued for the petitioner that an attachment confers no title or interest but merely prevents alienation, and at the most entitles the attaching creditor to have the property in custodia legis, Motilal v. Karrabuldin ILR (1897) Cal. 179., and a previous attaching creditor obtains no such priority of title in respect of property attached by him previous to the vesting order: Frederick Peacock v. Madan Gopal ILR (1902) Cal. 428., Raghunath Das v. Sundar Das Khetri , 16 Bom. L.R. 814, and Sankaralinga Reddi v. Kundasami Tevan ILR (1907) Mad. 413.
4. It is contended for the opponent that an attaching creditor has undoubtedly an interest in the property, Kishen Dai v. Satyendra Nath Dutt ILR (1901) Cal. 441, and the word 'title' in Rule 89 must be given a liberal construction as meaning any right including the rights of an attaching creditor.
5. Under the corresponding Section 310A of the Code of 1882 an application could only be made by any person whose immovable property 'has been sold'. As to whether a purchaser subsequent to the Court sale could so apply there is some difference of opinion, this Court holding, in Pandurang Laxman v. Govind Dada ILR (1916) 40 Bom. 557, 18 Bom. L.R. 571, that the judgment-debtor or a purchaser prior to the Court sale could apply but not a subsequent purchaser, and that in the case of such a subsequent purchaser the application could be made by the judgment-debtor, the object of the rule being 'not merely or not specifically to preserve the immovable property in the hands of the judgment-debtor, but to ensure, so far as may be possible, that the immovable properties shall not at Court sales be sold at inadequate prices.' The other cases on the point under the old section will be found in Mulla's Code of Civil Procedure, 9th Edition, page 745.
6. On the present question there is no express authority. An attaching creditor undoubtedly can apply under Rule 90 as a person 'whose interests are affected by the sale': Dhirendra Nath Roy v. Kamini Kumar Pal ILR (1924) Cal. 495, The words of Rule 90, however, are wider; but it may be conceded that if an attaching creditor has an interest 'affected by the sale' under Rule 90, it Would be difficult to say that he has no interest in the immoveable property sold under Rule 89, The question, however, remains whether this interest can be said to be 'by virtue of a title acquired before such sale.' In Si Potti v. Suppammal AIR  Mad. 723, in the case of an application by a trespasser in possession of the property sold prior to the sale, Oldfield J. held that such a trespasser in possession is not a person within the meaning of the words now in question under Rule 89, whereas Venkatasubba Rao J. was of a contrary opinion mainly on the authority of certain English cases in which it was held that a person in possession of the land without other title has a devisable interest.
7. Comparing Rule 89 with Rule 90, the legislature by the words 'by virtue of a title' apparently intended to limit them to a purchaser prior to the Court sale rather than to extend them to an attaching creditor as in the case of the wider words under Rule 90. The construction for the opponent, to all intents and purposes, renders the words 'by virtue of a title' mere surplusage. An attaching creditor may have an interest before such sale. But it in difficult to speak of a title on the strength of an attachment. If interest 'by virtue of a title' is something more than a mere interest as in Rule 90, an attaching creditor who may have an interest as in Rule 90 cannot, in my opinion, be said to hold interest by virtue of a title under Rule 89. In the result, comparing the wider relief to a person 'holding an interest therein by virtue of a title' in Rule 89 with the more limited relief to one 'whose interests are affected by the sale' in Rule 90--limited to the ground of 'material irregularity'--it appears to me on the whole that an attaching creditor such as the opponent has an interest but no 'interest by virtue of a title acquired before such sale', and can therefore apply under Rule 90 but not under Rule 89. It was held in Kedar Nath Sen v. Uma Charan 6 C.W.N. 57 that an attaching creditor is not a person 'whose immovable property is sold' within the meaning of the old Section 310A, Civil Procedure Code. It does not appear to me that the legislature intended that he should be so under the present Rule 89.
8. It should be noticed that the attaching creditor could have satisfied the decree before the sale under Section 91 (f) of the Transfer of Property Act. He did not satisfy the decree or prevent the property from being brought to sale. He cannot now have the sale set aside under Rule 89.
9. For these reasons I am of opinion that the order of the lower Courts is wrong. The application is allowed and the rule is made absolute with costs throughout on the opponent.