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Brij Gopal Bhatia Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 50 of 1959
Judge
Reported inAIR1963All445
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 89 and 90
AppellantBrij Gopal Bhatia
RespondentThe Union of India (Uoi) and ors.
Appellant AdvocateGopi Nath, Adv.
Respondent AdvocateS.B.L. Gaur and ;K.B.L. Gaur, Advs.
DispositionAppeal dismissed
Excerpt:
civil - sale in execution - order 21 rule 90 of code of civil procedure, 1908 - rule 89 and 90 entitles a person to file an objection holding an interest in the property sold - monthly tenant has only a right to remain in occupation of the property as long as tenancy lasts - held, monthly tenant cannot file an objection regarding the fraudulent sale. - .....under order xxi, rule 90, c. p. c 2. the appellant who is tenant of the accommodation under sale, filed an objection underorder xxi, rule 90, c. p. c. in that objection it was not suggested what injury or what substantial injury had been suffered by him as a result of the sale. the learned civil judge, mathura, dismissed the objection firstly on the ground that it was not maintainable, as a tenant is not a person whose interests are affected by the sale, and secondly on the ground that no substantial injury having been alleged in the objection the objection was not maintainable. it is against this order that the present appeal has been filed.3. it has been contended in this appeal that the expression 'whose interests are affected by the sale' used in order xxi, rule 90 (1), c. p......
Judgment:

Mithan Lal, J.

1. I have heard the learned counsel for the parties in this appeal against an order rejecting the application of the appellant under Order XXI, Rule 90, C. P. C

2. The appellant who is tenant of the accommodation under sale, filed an objection underOrder XXI, Rule 90, C. P. C. In that objection it was not suggested what injury or what substantial injury had been suffered by him as a result of the sale. The learned Civil Judge, Mathura, dismissed the objection firstly on the ground that it was not maintainable, as a tenant is not a person whose interests are affected by the sale, and secondly on the ground that no substantial injury having been alleged in the objection the objection was not maintainable. It is against this order that the present appeal has been filed.

3. It has been contended in this appeal that the expression 'whose interests are affected by the sale' used in Order XXI, Rule 90 (1), C. P. C. is wide enough to include a tenant or a lessee of immovable property and that after sale there being a danger of the appellant being ejected he would suffer substantial injury if the sale is allowed to stand.

4. So far as the first contention raised by the learned counsel goes, it has been held in the case of Adenna v. C. Ramayya AIR 1928 Mad 1191 that a lessee of the property sold in execution can apply under Order XXI, Rule 89, C. P. C. because he is a person holding an interest therein. In an earlier Madras case of Potti Nayakar v. Suppammal, AIR 1924 Mad 723 an observation was also made that even a trespasser may have an interest which may entitle him to file an objection. No authority taking a contrary view has been brought to my notice. In view of the language used in Rules 89 and 90 it does appear that the Legislature has used a very wide phraseology which entitles any person holding an interest in the property sold to file an objection. A lessee or a mortgagee may have such an interest, but the question is whether a tenant whose tenancy is from month to month can be deemed to have such an interest.

It seems to me that the monthly tenant will not have such an interest because he has only a right to remain in occupation of the property as long as the tenancy lasts. His interest depends upon the tenancy and for a month to month tenancy, in spite of the control on eviction, it cannot be said that he has such an interest in the property as is envisaged by Rules 89 and 90. In that sense his possession will not be akin to a mortgagee in possession or a lessee other than a monthly tenant. Jn this view of the matter a monthly tenant cannot be said to be a person holding an interest in the property entitling him to file an objection under Order XXI, Rule 89 or 90, C. P. C. If any contrary view is taken, it is likely to give a handle to unscrupulous judgment-debtors, and tenants to file unnecessary objections under Order XXI, Rule 89 or 90. To my mind the position of a monthly tenant is not such as can be covered by Rule 90 entitling him to file an objection questioning the validity of a sale on the ground of irregularity or fraud.

5. The second contention is also without force because the objector has not alleged any substantial injury, which is necessary to be proved before sale is set aside on the ground of any irregularity or fraud. Consequently entertainment of this objection will be fruitless leading to no result.

6. The learned Civil Judge, Mathura was therefore right in dismissing the objection.

7. The appeal fails and is hereby dismissed with costs.


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