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Vootla Viriah and ors. Vs. Tadepalli Subba Rao (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in(1949)1MLJ316
AppellantVootla Viriah and ors.
RespondentTadepalli Subba Rao (Died) and ors.
Cases ReferredGopalakrishnayya v. Sanjeeva Reddi
Excerpt:
.....the sale under order 21, rule 89, civil procedure code. but the lower court on an interpretation of the decision of this court mentioned above as well as certain orders made in execution proceedings in certain other suits came to the conclusion that the petitioners appellants had no saleable interest in the property in order to enable them to file a petition for setting aside the sale. , have laid down that where on an application under order 21, rule 89 to set aside an execution sale on payment of the prescribed amount, it was found that the applicant had already unsuccessfully applied to stop the sale on payment of the decree amount and had also put in a claim petition under order 21, rule 58 which had been dismissed, the proceedings under order 21, rule 58 which had been dismissed,..........sale in which the contesting respondents 7 and 8 were the purchasers of certain items of property sold in execution of the decree in o.s. no. 77 of 1910 on the file of the district court of kistna. the learned subordinate judge of baptala held that the appellants as petitioners in the court below did not have any interest in the property sold so as to entitle them to apply under the provisions of order 21, rule 89, and dismissed the application.2. a few facts have to be stated in order that the position may be understood, clearly. the properties which are the subject matter of the sale belonged to one nawab hassanali khan bahadur and were sold by him under ex. p-1 dated 5th. february, 1920 to the first appellant and the father of the second appellant herein for a sum of rs. 45,000; but.....
Judgment:

Govinda Menon, J.

1. This appeal arises out of the dismissal of an application, under Order 21, Rule 89, Civil Procedure Code filed by the appellants herein, before the lower Court for setting aside a sale in which the contesting respondents 7 and 8 were the purchasers of certain items of property sold in execution of the decree in O.S. No. 77 of 1910 on the file of the District Court of Kistna. The learned Subordinate Judge of Baptala held that the appellants as petitioners in the Court below did not have any interest in the property sold so as to entitle them to apply under the provisions of Order 21, Rule 89, and dismissed the application.

2. A few facts have to be stated in order that the position may be understood, clearly. The properties which are the subject matter of the sale belonged to one Nawab Hassanali Khan Bahadur and were sold by him under Ex. P-1 dated 5th. February, 1920 to the first appellant and the father of the second appellant herein for a sum of Rs. 45,000; but prior to that, there was a suit against this Nawab Hassanali Khan Bahadur and others (O.S. No. 77 of 1910) in which the plaintiff obtained a decree for a sum of money against him. In execution of that decree, the decree-holder attached these properties whereupon the first appellant and the father of the second appellant filed an application under Order 21, Rule 58 stating that the property should not be attached because the judgment-debtors had no saleable interest in the property. The executing Court allowed the claim, whereupon the decree-holder filed O.S. No. 8 of 1924 on the file of the lower Court for a declaration that the suit properties were liable to be attached in execution. of his decree. The trial Court dismissed that suit, but the same was taken on. appeal to this Court (A.S. No. 131 of 1926) and was disposed of by a Bench of this. Court on 4th April, 1929 (Ex. D-5) by which the decree of the lower Court dismissing the suit was set aside, and it was held that the decree-holder plaintiff was, entitled to a declaration that the sale deed Ex. P-1 dated 5th February, 1920 was; not binding against him. Thereafter the decree-holder continued the execution proceedings in which the properties were sold and respondents 8 and 9 in the lower Court, who are the contesting respondents here, purchased them. After that, the present appellants consisting of one of the original purchasers under Ex. P-1 and a son of the second purchaser, as well as the alienees from them of different portions of the property deposited the amount and applied to the lower Court for setting aside the sale under Order 21, Rule 89, Civil Procedure Code.

3. Various contentions were raised before the learned Subordinate Judge of which, the contention whether the different petitioners acquired any right by the sale deed, Ex. P-1 in the various items was decided in favour of the petitioner. But the lower Court on an interpretation of the decision of this Court mentioned above as well as certain orders made in execution proceedings in certain other suits came to the conclusion that the petitioners appellants had no saleable interest in the property in order to enable them to file a petition for setting aside the sale. The question therefore for decision is whether the petitioners have any saleable interest or not. The learned Judge construed Ex. D-5, as a decision which estopped the petitioners from contending that they had any right or interest in the attached property. The decision of the learned Judge on this point cannot be supported. In Dhanammal v. Veeraraghava Naidu (1922) 44 M.L.J. 325 Spencer and Venkatasubba Rao, JJ., have laid down that where on an application under Order 21, Rule 89 to set aside an execution sale on payment of the prescribed amount, it was found that the applicant had already unsuccessfully applied to stop the sale on payment of the decree amount and had also put in a claim petition under Order 21, Rule 58 which had been dismissed, the proceedings under Order 21, Rule 58 which had been dismissed, did not bar the application for setting aside the sale under Order 21, Rule 89. Spencer, J., at page 327 observes as follows:

The effect of the dismissal of the petitioner's claim petition was not to decide finally that the petitioner had no interest to ask that the sale should be set aside on payment of the decree amount plus five per cent into Court but only to decide that she had no right to have the attachment raised. These are two very different things. The first (that under Rule 89) may imply the existence of an interest of a judgment debtor owning the property sold or an interest derived from the same source as the owners of an interest paramount to the judgment-debtor's; the second (that under Rule 58) implies the existence of a right independent from and antagonistic to the judgment-debtor's. It is impossible to conceive how the dismissal of the claim petition could operate as res judica to prevent the admission of an application to pay the decree amount and get the property released after the sale.

Venkatasubba Rao, J., also came to the same conclusion but expressed the further opinion that Order 21, Rule 89 should be liberally construed and a restricted interpretation should not be put upon the words of that rule. This decision, so far as we are aware, has not been dissented from in this Court, and it applies directly to the facts of the present case.

4. Mr. N. Subrahmanyam for the auction purchaser respondent contends on the authority of Narasimhachari v. Raghava Padayachi : AIR1945Mad333 , that it is not open to the petitioners to contend that they have any interest in the property in order to enable them to have the sale set aside. In our opinion, the Full Bench decision mentioned above has no application to the facts of the present case. What was held therein was that a decision under Order 21, Rules 58 and 63 became conclusive in so far as the parties thereto were alone concerned. It is conclusive between the parties to the suit or their legal representatives so far as the execution of the particular decree is concerned; but where the property is sold in execution proceedings arising out of an entirely different decree the claimant will not be precluded from setting up his title against a stranger purchaser. It is difficult to see how this decision has any bearing so far as the facts herein are concerned. The decree in O.S. No. 8 of 1924 by this Court as a result of which the decree-holder obtained a declaration that Ex. P-1 was not binding so far as his decree was concerned cannot be questioned by the appellants here; but it is a different matter to say that by that decree the appellants have been held to have no interest whatever in the suit property. It may be that the interest may not be sufficient to be put forward as a shield against the decree-holder's claim, and that was the reason why the properties were attached and sold in execution of the decree, The word ' interest ' in Order 21, Rule 89 has got a very wide import and should be construed very liberally as Venkatasubba Rao, J., observed in the case above-mentioned. Any inchoate right which a party may have over a property may be sufficient 'interest' to enable him to apply under Order 21, Rule 89. We see from Mulla's Code of Civil Procedure that the learned author has quoted the decision in Dhanammal v. Veeraraghava Reddi (1922) 44 M.L.J. 325 with approval and states that a person who has failed in an application under Order 21, Rules 58 and 63 is still enabled to file an application to have the sale set aside by depositing the decree amount plus the necessary poundage etc., under Order 21, Rule 89. The other decision cited by Mr. N. Subramanyam, Gopalakrishnayya v. Sanjeeva Reddi (1919) 38 M.L.J. 228 has also, in our opinion, no application to the present case.

5. We are therefore of opinion that the order of the learned Subordinate Judge dismissing the application is incorrect.

6. The appeal is therefore allowed with costs payable by respondents 7 and 8, and the petition is remanded to the lower Court for setting aside the sale, if the proper amount has been deposited within the time allowed.


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