1. The second defendant in O.S. No. 24 of 1939 in the Court of the Subordinate Judge of Bezwada filed on the 27th January, 1945, an application under Order 21, Rule 90 of the Civil Procedure Code to set aside a sale held in execution of the decree in that suit. He alleged that there was no proper publication and that the decree-holder had colluded with one of the defendants and had the properties knocked down for a low price. To this application he did not make the auction purchaser a party. On 3rd April, 1945, he filed a petition for permission to amend the application by impleading the auction purchaser. The learned Subordinate Judge dismissed the application for amendment on the ground that it had been filed beyond thirty days from the date of the sale ; and on the same day he dismissed the main application on the ground that the auction purchaser was not made a party to it and that, therefore, the application did not lie. The second defendant has filed this civil miscellaneous appeal against the order dismissing his main application and the civil revision petition against the order dismissing the application for bringing the auction purchaser on record.
2. It is argued on his behalf that there is no provision in Order 21, requiring an auction purchaser being impleaded in an application under Order 21, Rule 90 of the Code. Therefore, the application when it was presented was a valid application and consequently permission should have been granted to make the auction purchaser a party to the application even though it was applied for beyond thirty days. It is also pointed out that the learned Subordinate Judge was not justified in dismissing the application on the ground that the auction purchaser was not a party to it. It is contended that the only requisite with regard to applications referred to in Rule 92 is that no order should be passed on those applications unless notice is issued to all persons affected by the sale. In support of these contentions reliance is placed on a Bench decision of this Court in Narayana Sahu v. Pentammal : AIR1929Mad763 . That was a case where an application was made under Rule 89 of Order 21, for setting aside a sale. To that application as originally presented the auction purchaser was not a party, and the lower Court dismissed the application presented subsequently for impleading the auction purchaser because it had been filed beyond thirty days from the date of the sale. It was held that the omission to include the auction purchaser till after the expiry of the thirty days allowed for an application under Rule 89 was not a fatal defect.
3. It is contended on behalf of the respondents that this decision does not apply to the case under consideration as here the application was under rule go. It is further argued that if this decision is considered applicable to the present case it needs reconsideration in view of a decision of the Calcutta High Court in Bibi Sharefan v. Habibuddin (1911) 15 C.W.N. 685 which, it is said, has met with the approval of their Lordships of the Privy Council in Seth Nanhelal v. Umrao Singh (1930) 60 M.L.J. 423 : L.R. 58 IndAp 50.
4. We have been through these decisions and in our opinion the contentions of the learned advocate for the appellant second defendant, have to prevail and both the appeal and the civil revision petition must be allowed. The fact that the present application was under Rule 90 and not under Rule 89 does not make any difference as far as the question raised before us is concerned. In our opinion the decision in Narayana Sahu v. Pentammal : AIR1929Mad763 is applicable to the facts of the present case. There are no doubt observations in the above mentioned Calcutta case which suggest that an auction purchaser should be impleaded in a petition to set aside the sale, but it does not appear that their Lordships of the Judicial Committee in referring to this decision with approval considered the present question. Rule 90 is to the effect that where an immoveable property has been sold, the decree holder or any person whose interests are affected by the sale may apply to the Court to set it aside 011 the ground of material irregularity or fraud. It appears to us that applications under this rule are in effect applications made to the Court pointing out irregularities or fraud in the Court sale. There is nothing in this rule or in any of the rules of Order 21 to show that the auction purchaser should appear in the array of parties as a respondent. The only provision that safeguards the interests of an auction purchaser in this respect is the proviso to Sub-rule (2) of Rule 92, which, is to the effect that no order shall be made unless notice of the application has been given to all persons affected by the sale. This proviso applies not only to applications under Rule 89 but also to applications under Rule 90. The Calcutta High Court in Radhakrishna Mahesri v. Thanksukh Mahesri I.L.R. (1934) Cal. 286 where the application was under Order 21, Rule 90, followed an earlier decision of the same Court where it had been held that there being no provision to the effect that an auction purchaser should be arrayed in an application under Rule 90 in the corresponding categories of plaintiffs and defendants, to hold that an application without his being so arrayed is not valid would necessitate reading into the proviso of Order 21, Rule 92, a mandalory provision, which could have, had the Legislature so intended, been expressly mentioned. We, with respect, agree with this view as well as the view taken by a Bench of this Court in Narayana Sahu v. Pentammal : AIR1929Mad763 .
5. We therefore consider that the application as originally made was not incompetent and that therefore the petition for impleading the auction purchaser though filed beyond thirty days should have been allowed. The civil revision petition is allowed with costs . The order of the lower Court dismissing the main application is set aside, and that application will be disposed of on the merits according to law. The civil miscellaneous appeal is allowed. The costs in this Court will abide the result.