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Koothoor Cherappan and anr. Vs. T.K.S.S. Sankara Aiyar and Subbayya Aiyar by Partner Subbayya Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad680; (1941)2MLJ63
AppellantKoothoor Cherappan and anr.
RespondentT.K.S.S. Sankara Aiyar and Subbayya Aiyar by Partner Subbayya Aiyar and ors.
Cases ReferredMt. Mehr Bano v. Sher Mahomed A.I.R.
Excerpt:
- - it seems to me that this contention is well founded......a material irregularity. where the complaint is that the property not belonging to the judgment-debtor sold, the sale is a nullity because what would be sold and purchased would be only the right and title of the judgment-debtor and if he has no title, nothing would pass under the sale, and no question of setting aside the sale would arise. this is the view taken by the learned judges of the allahabad high court in shirin begam v. agha ali khan i.l.r. (1895) all. 141 on the corresponding section 311, civil procedure code. burkitt, j., in the course of the judgment remarked thus at p. 145:.the words 'set aside' are inapplicable to the case of a sale which is null and void. that which is a nullity cannot, from its very nature, be 'set aside' as was held by the bombay high court in.....
Judgment:

Venkataramana Rao, J.

1. The main question for decision in this Civil Revision Petition is whether the application of the petitioners under Order 21, Rule 90, Civil Procedure Code out of which this petition arises is sustainable. The relevant facts are few and are these. In execution of a decree obtained by the first respondent against the second respondent, one-fourth share in certain items of immoveable property were attached, and sold. The second respondent and the petitioners were co-owners entitled each to a third share in all the properties that were attached. But subsequent to the attachment there was an agreement to refer the matter to arbitration and there was an award in and by which the properties were divided into three equal shares and some of the items which formed the subject-matter of the attachment exclusively fell to the share of the petitioners. The sale in court-auction in execution of the decree of the first respondent took place subsequent to this division. This application is by the petitioners to set aside the sale in regard to the properties which fell exclusively to their shares. The learned District Munsif allowed the application of the petitioners but the learned District Judge reversed it, but the ground on which he did so is not supported by the learned Counsel for the first respondent. But he contended that the application under Order 21, Rule 90 is not sustainable. His contention is that the petitioners claim by title adverse to and paramount to that of a judgment-debtor and they are not therefore persons whose interests were affected by the sale. It seems to me that this contention is well founded. The corresponding section in the old Civil Procedure Code was Section 311 where the corresponding expression was 'any person whose immoveable property has been sold.' A Full Bench of the Calcutta High Court has interpreted this to mean a person whose interest is affected by the sale. It is this interpretation that was adopted in the Code of 1908 by enacting Order 21, Rule 90. In Asmutunnissa Begum v. Ashruff Ali I.L.R.(1888) Cal. 488 (F.B.) the person who made the application is the person who claimed under the sale from the judgment-debtor prior to the attachment. Sir Petheram, the learned Chief Justice, observed in the course of the judgment thus:.a person claiming by title paramount to the judgment-debtor is not within the meaning of the words 'any person' in the section, inasmuch as his title to the property is not affected by the sale, whether it were regular or irregular, and therefore cannot apply to the Court to set aside the sale.

2. This interpretation was also accepted by our High Court. Vide Subbarayadu v. Pedda Subbarazu I.L.R.(1892) Mad. 476. On the language of the section it seems to me, if I may say so with respect, that this is the correct interpretation. A sale can be set aside under Order 21, r, 90 only on the ground of material irregularity or fraud in publishing or conducting it. Where an applicant seeks to set aside a sale on the ground that his property has been sold and that the property does not belong to the judgment-debtor, he is not complaining of any material irregularity or fraud in publishing or conducting the sale. The section assumes that the Court has jurisdiction to sell but in the procedure that is adopted, that is, either in publishing or conducting the sale, there was a material irregularity. Where the complaint is that the property not belonging to the judgment-debtor sold, the sale is a nullity because what would be sold and purchased would be only the right and title of the judgment-debtor and if he has no title, nothing would pass under the sale, and no question of setting aside the sale would arise. This is the view taken by the learned Judges of the Allahabad High Court in Shirin Begam v. Agha Ali Khan I.L.R. (1895) All. 141 on the corresponding Section 311, Civil Procedure Code. Burkitt, J., in the course of the judgment remarked thus at p. 145:.the words 'set aside' are inapplicable to the case of a sale which is null and void. That which is a nullity cannot, from its very nature, be 'set aside' as was held by the Bombay High Court in Shivaji Yesji Chawan v. The Collector of Ratnagiri I.L.R.(1886) 11 Bom. 429.

3. With these observations I respectfully agree. Mr. Ramakrishna Aiyar relied on a number of cases on Order 21, Rule 89, but it is not necessary for me to deal with them because the expression used there is 'any person holding an interest in the property', whereas the language used in Order 21, Rule 90 is 'any person whose interests are affected'. The fact that under the section no relief can be given unless the applicant has sustained substantial injury shows that the person claiming by title paramount was not meant to be the person whose interest is affected by the sale. It may be that a cloud is cast on his title by reason of the sale which might furnish a cause of action for a declaratory suit; but casting a cloud on title is not substantial injury within the meaning of the rule. Mr. Ramakrishna Aiyar relied on a ruling in Mt. Mehr Bano v. Sher Mahomed A.I.R. 1936 Lah. 969 for the view that even strangers can come in under Order 21, Rule 90. If the decision was meant to lay down that persons claiming by title paramount to that of the judgment-debtor can make the application under that section, I respectfully dissent. The petitioners are not in any way affected by the sale. What was sold was only an undivided share in certain items and if the purchaser wants to realise the fruits of his purchase, he will be obliged to file a suit for partition and separate possession of the share purchased and it will be open to the petitioners to resist his claim and therefore they are not in any way hurt.

4. In the result the Civil Revision Petition fails and is dismissed but I make no order as to costs.


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