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Dachepalli Ramanujam Vs. Dara Raju and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 419 of 1976
Judge
Reported inAIR1978AP143
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 89(1)
AppellantDachepalli Ramanujam
RespondentDara Raju and ors.
Appellant AdvocateD. Satyanarayana, Adv.
Respondent AdvocateJwala Narasimlu, Adv. for ;M. Jagannadha Rao, Adv.
Excerpt:
.....- order 21 rule 89 (1) of code of civil procedure, 1908 - suit instituted for recovery of money was decreed - petition filed for purpose of execution of decree house of judgment-debtor was put to auction - auction held on 25.09.1975 - at that stage 3rd party filed petition under order 21 rule 89 for setting aside of sale - court below held petition by 3rd party maintainable because of fact that he is person holding interest in property - whether 3rd party attaching creditor is a person holding an interest in property sold and whether he is entitled to present an application under order 21 rule 89 - held, an attaching creditor has got an interest in property sufficient to enable him to make deposit contemplated under order 21 rule 89 - appeal dismissed. - - 89 (1) to mean an..........for determination, as has already been noticed, is whether the third party attaching creditor is a person holding an interest in the property sold and whether he is entitled to present an application under o. 21, r. 89 c.p.c. seeking the setting aside of the sale of the house.4. it is admitted that the 1st respondent is the attaching creditor. he has deposited the entire sale warrant amount, poundage, profit to the purchaser amounting to rs. 19,270-40 ps. we shall now read o. 21, r. 89 (1) c.p.c. in so far as it is material:'where immovable property has been sold in execution of a decree, the judgment-debtor or any person deriving title from the judgment-debtor, or any person holding an interest in the property may apply to have the sale set aside on his depositing in court.'5. the 1st.....
Judgment:

1. The point that arises for determination in this appeal is whether a third party attaching creditor is a person 'holding an interest in the property' within the meaning of that expression as occurring in O. 21, R. 89 of the Civil P. C. for enabling him to have the sale set aside

2. This appeal by the 1st defendant is directed against the decree and judgment of the learned Subordinate Judge, Vizianagaram made in E A. No. 436 of 1975 in E. P. No. 71 of 1972 in O. S. No. 16/1968. That suit was instituted for the recovery of money. That was decreed. E. P. No. 71 of 1972 was filed for the purpose of securing the execution of the decree passed in the above suit. The house belonging to the judgment-debtor was put to auction and the auction was held on 25-9-1975. It is at that stage the third party filed E. A. No. 436 of 1975 under O. 21, R. 89 C.P.C. seeking the setting aside of the sale. That third party filed a suit O. S. No. 9 of 1972 against the appellant herein and obtained a decree for money. Pending disposal of that suit, he obtained attachment before judgment on 23-2-1972. Ultimately he obtained a decree in O. S. No. 9 of 1972 on 26-8-1975. The Court below held that the third party can maintain an application under O. 21, R. 39 C.P.C. for setting aside the sale taken place on 25-9-1975 because of the fact that he is the person 'holding an interest in the property' under O. 21, R. 89 (1) C.P.C.

3. The point therefore that arises for determination, as has already been noticed, is whether the third party attaching creditor is a person holding an interest in the property sold and whether he is entitled to present an application under O. 21, R. 89 C.P.C. seeking the setting aside of the sale of the house.

4. It is admitted that the 1st respondent is the attaching creditor. He has deposited the entire sale warrant amount, poundage, profit to the purchaser amounting to Rs. 19,270-40 ps. We shall now read O. 21, R. 89 (1) C.P.C. in so far as it is material:

'Where immovable property has been sold in execution of a decree, the judgment-debtor or any person deriving title from the judgment-debtor, or any person holding an interest in the property may apply to have the sale set aside on his depositing in Court.'

5. The 1st respondent is the attaching creditor. But for these proceedings, in view of the fact that he obtained a decree in O. S. No. 9 of 1972 he would have been entitled to proceed against the property attached therein in execution of that decree for the purpose of bringing it for sale. It is not as if he can be considered to be a person having absolutely no interest whatsoever in the subject-matter of attachment. On account of the obtainment of attachment before judgment in a suit, the 1st respondent can be considered to be a per son holding an interest in the property within the meaning of the expression as occurring in O. 21. R. 89 (1) C.P.C. By making the expression 'any person holding an interest in the property' in O. 21, R. 89 (1) to mean an attaching creditor also, the purpose or the object of that provision of law, far from being defeated is likely to be furthered. If that is so and I am of the opinion that it should be so, a person in the position of 1st respondent being an attaching creditor is entitled to file an application under O. 21, R. 89 (1) C.P.C. seeking the setting aside of the sale after depositing the sale warrant amount in the Court.

6. I am fortified in this view of mine by a decision of Madras High Court rendered by Govinda Menon, J. in the case of Mammu v. Vinayaka Kamath : AIR1951Mad816 . Interpreting O. 21, R. 89 C.P.C. the learned Judge observed thus (at p. 816):

'It has to be observed that O. 21, R. 89 has undergone some transformation. The words originally were 'holding an interest therein by virtue of a title acquired before such sale'. Now these words have been altered and the words 'holding any interest' have been substituted. It seems to me that the substitution is intended to give a more beneficent and wider right than was contemplated before. A person who has attached property has certainly got interest in seeing that the property is not alienated or otherwise transformed. I am inclined to hold that an attaching creditor has got an interest in the property sufficient to enable him to make the deposit contemplated under O. 21, R. 89.'

7. I follow that decision and hold that the decision of the Court below ordering E. A. No. 436 of 1975 filed by the 1st respondent is quite proper as not to warrant any interference by this Court with that decision. I find no merits in this appeal. The appeal is, therefore, dismissed with costs.

8. Appeal dismissed.


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