1. This appeal arises out of a sale of immovable property in execution of a decree. The property was sold on the 21st of August, 1910.
2. On the 20th of September, 1910, the Judgment-debtor, who is the respondent in this appeal, paid into the Treasury the amount which was necessary under Order XXI, Rule 89, to enable him to have the sale set aside. On this date the court was closed and it did not re-open until the 5th of October, 1910.
3. It is an admitted fact that subsequently to the auction sale and prior to the 20th of September, 1910, the Judgment-debtor transferred by sale all his interest in the property to a third party, so that on the latter date he could no longer be said to be the owner of the property. On the 5th of October, he applied to the court to set aside the sale under Order XXI, Rule 89.
4. To this the auction purchaser, who was not the decree-holder, objected. Several points were raised by these objections, the chief one being that as the Judgment-debtor had parted with his interest in the property by sale to a third party, prior to his application but subsequently to the sale, he was no longer qualified to apply under Order XXI, Rule 89. The lower court decided all the questions in favour of the Judgment-debtor, hence this appeal by the auction purchaser, who raises for decision the same points which were before the lower court, the chief one being that mentioned above.
5. In my opinion the decision of the lower court on this, the chief point, is wrong. Under Order XXI, Rule 89, 'any person, either owning the property or holding an interest therein by virtue of a title acquired before such sale 'may apply to have the sale set aside. This language clearly precludes the transferee from the Judgment-debtor in the present case from making any such application. Does the fact that the Judgment-debtor has parted, by sale, with the whole of his interest, after the auction sale, also preclude him from making the application The lower court has held (and the same argument has been pressed upon us in this Court) that after the auction sale and until it is set aside, no interest is left to the Judgment-debtor capable of transfer, and hence the sale by him in this case is virtually a nullity and he therefore remains in the same position as on the date of the auction sale. With this I cannot agree. Until the auction sale is confirmed the Judgment-debtor has a very substantial interest in the property. ' He still retains a right either to recover his property under Order XXI, Rule 89, or to have the sale set aside on the ground of irregularity or fraud (order XXI, Rule 90); even though the title may vest in the auction purchaser from the date of the sale when once the sale has become absolute.
6. The rule in Order XXI is a special indulgence to a Judgment-debtor or any person holding an interest in the property at the date of the sale. It gives them a last chance of saving the property for themselves. It was never intended that the property should be saved for persons to whom the property might be sold privately after the auction sale had taken place. The language of the rule (which differs considerably from that of Section 310 A of the former Code) clearly points to this. It clearly shuts out all persons who purchase or acquire an interest after the auction sale. It seems to me that the Legislature had clearly in mind the case of a purchaser at a private sale from the Judgment-debtor after the sale in execution, in respect to whose right to apply under Section 310A of the old Code, there were conflicting rulings (vide 1 C.W.N., 279 and I.L.R., 30 Mad., 214).
7. It is therefore incorrect to say that the private sale in the present case was a mere nullity and that the Judgment-debtor remained the 'owner of the property' in spite thereof.
8. To allow the present application would, it seems to me, be to defeat the very object of the rule. The person making the application is, no doubt, the Judgment-debtor, but the person who will benefit by it is the person who has acquired the ownership (or at least an interest in the property) subsequently to the sale in execution, the very person whom the law now in clear terms precludes from making the application. The ruling in Debi Prasad Pandit v. Muhammad Unis Arabi (1910) 14 Oudh Cases 33 is the only direct decision on the point which has been laid before the Court. With that decision I am in full agreement and would hold that the Judgment-debtor by denuding himself of all his interest by sale to a third party after the sale in execution, is no longer the person owning the property within the meaning of Order XXI, Rule 89. In this view it is unnecessary to decide the minor points which arise in the case. I would allow the appeal and set aside the order of the court below.
9. I concur. I think that there can be no doubt that Order XXI, Rule 89, was intended to give persons owning or holding interests in immovable property the subject of an execution sale a last chance of saving the property. But the words 'owning such property or holding an interest therein' evidently refer only to persons who own the property or hold an interest therein at the date of the application, and whether the applicant, be the owner of or only the holder of an interest in the property he must show that he acquired his title before the execution sale. As I read the rule, neither the owner nor the holder of an interest who has parted with his title since the sale or who has acquired title since the sale can apply under Rule 89. That was the view taken in the Oudh case cited. I agree that the appeal should be allowed.
10. The appeal is allowed. The order of the court below is set aside. The sale in favour of the appellants will stand confirmed.