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B. NaraIn Pal Singh Vs. Rudra Bhan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All2
AppellantB. NaraIn Pal Singh
RespondentRudra Bhan Singh and ors.
Excerpt:
.....but the creditor has sufficient interest with reference to that property which may well be affected if an irregular sale takea place and he may well suffer substantial loss in consequence. the calcutta case quoted above clearly laid down that an attaching creditor comes within that rule. 10. it is accordingly clear that the main point for consideration is whether rudra bhan singh or baij nath singh had got the property effectively attached before the sale took place. 11. before disposing of the application finally, we direct that the applicant should file an affidavit clearly showing the circumstances which would contradict the statements made in the objection of baij nath singh filed in the court below, and the respondent should fila an affidavit showing how the attachment was obtained..........by the decree-holder, judgment-debtor or the auction purchaser; but was made by two persons rudra bhan singh and baij nath singh who claimed to be the other decree-holders. both the courts below came to the conclusion that there had not been a proper proclamation of the sale and that in consequence the property which was worth about rs. 15,000 was sold for rs. 4,000 only. being satisfied that there had been substantial loss incurred on account of the irregularity they have set aside the sale.2. the applicant who is the auction-purchaser applies for a revision of the order passed by the courts below on the ground that the courts had no jurisdiction to set aside the sale except on an application made by some one who came within the meaning of order 21, rule 90, civil p.c. and that the.....
Judgment:

Sulaiman, Ag. C.J.

1. This is an application in revision from an order of the lower appellate Court confirming an order of the first Court setting aside an auction sale. The application under Order 21, Rule 90 was not made by the decree-holder, judgment-debtor or the auction purchaser; but was made by two persons Rudra Bhan Singh and Baij Nath Singh who claimed to be the other decree-holders. Both the Courts below came to the conclusion that there had not been a proper proclamation of the sale and that in consequence the property which was worth about Rs. 15,000 was sold for Rs. 4,000 only. Being satisfied that there had been substantial loss incurred on account of the irregularity they have set aside the sale.

2. The applicant who is the auction-purchaser applies for a revision of the order passed by the Courts below on the ground that the Courts had no jurisdiction to set aside the sale except on an application made by some one who came within the meaning of Order 21, Rule 90, Civil P.C. and that the applicants did not come within the rule.

3. Under Order 21, Rule 90, 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 sat aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. It was held in the case of Ravinandan Prasad v. Jagarnath Sahu : AIR1925All459 that the expression 'whose interests are affected by the sale' does not necessarily mean 'whose interest in the immovable property put up for sale is affected by the sale' and the Calcutta High Court appears to have come round to the same view that the words are of a wider scope: vide the case of Dhirendra Nath Roy v. Kamini Kumar Pal : AIR1924Cal786 .

4. According to the objections filed in the Court below it appears that the objectors claim that Rudra Bhan Singh had obtained a decree against the judgment-debtor Sri Saran Singh at Partabgarh and had obtained an attachment of the property at Benares before judgment. There is a possibility that under the procedure laid down in Section 46 read with Order 38, Rule 7, Civil P.C., attachment before judgment of the property situated in Benares might have been made and the original period of two months might have been subsequently extended or attachment might have been made under Section 136, Civil P.C. If there had been a valid attachaient subsisting at the time the decree was obtained by Rudra Bhan Singh, there would be no necessity for a fresh attachment and Rudra Bhan Singh might claim to be a decree-holder who had attached the property subsequently sold at auction.

5. The other objector Baij Nath Singh alleged that he obtained another decree at Partabgarh and had got its execution transferred to Benares and there got the property in question attached in execution from the Court of the Subordinate Judge. Both Rudra Bhan Singh and Baij Nath Singh claimed to have attached the property from the Court of the Subordinate Judge at Benares.

6. The sale which was sought to be set aside had taken place in pursuance of an execution ordered by the Court of the Munsif at Benares.

7. If it were established that either Rudra Bhan Singh or Baij Nath Singh had validly attached the property subsequently sold, they would in our opinion come within the meaning of the expression 'whose interests ^are affected by the sale.' The attaching creditor has been) given certain specific rights under Section 64, Civil P.C. and all private transfers of the property subsequent to the attachment are void as against all claims enforceable under the attachment. No doubt the attachment does, not create any title or charge on the property, but the creditor has sufficient interest with reference to that property which may well be affected if an irregular sale takea place and he may well suffer substantial loss in consequence. The Calcutta case quoted above clearly laid down that an attaching creditor comes within that rule. We have no hesitation in accepting that view as it is in accordance with the observations made in the case of Ravinandan Prasad v. Jagarnath Sahu : AIR1925All459 .

8. It is not necessary for us to express an opinion whether a person who has merely attached the property before judgment and who has not yet obtained a decree would come within the moaning of that expression.

9. It may further be pointed out that if either Rudra Bhan Singh or Baij Nath Singh had properly got this property attached from the Court of the Subordinate Judge at Benares they would also be persons entitled to share in the rateable distribution of the assets. Although the properties may have been attached by two different Courts, nevertheless under Section 63, Civil P.C. the Court of the highest grade is the Court, which shall receive all the assets realized. The sale by the Munsif might not be a nullity, but the assets when realized would have to be sent to the Court of the Subordinate Judge. Admittedly these assets had not been received by the Court of the Subordinate Judge, and therefore it was open to Rudra Bhan Singh or Baij Nath Singh, provided they had attached the property, to apply for rateable distribution under Section 73, Civil P.C. They would therefore come within this expression also. This is tb.9 view expressed by a learned Judge of the Madras High Court in the case of Periya Karupan Chettiar v. Somasundaram Chetti A.I.R. 1927 Mad. 67, with which we agree.

10. It is accordingly clear that the main point for consideration is whether Rudra Bhan Singh or Baij Nath Singh had got the property effectively attached before the sale took place.

11. Before disposing of the application finally, we direct that the applicant should file an affidavit clearly showing the circumstances which would contradict the statements made in the objection of Baij Nath Singh filed in the Court below, and the respondent should fila an affidavit showing how the attachment was obtained by Rudra Bhan Singh. We allow two weeks' time to both the parties to file affidavits and to supply copies to 1 the opposite party. This case is to be put after three weeks.


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