1. The petitioner applied under Order 21 Rule 89 Civil Procedure Code to have the sale of certain properties set aside on depositing the amount specified in the proclamation of sale plus 5 per cent of the purchase-money. The District Munsif and the District Judge to whom she appealed both disallowed her application but On different grounds. The District Munsif's reason for dismissing her application was that she had previously applied to pay the amount due to the decree holder before the sale was held, and that he then rejected her application because she had no locus standi to pay the amount. The District Judge dismissed the appeal on the ground that the petitioner having claimed the property previously in a claim petition under Order 21, Rule 58, and that claim petition having been dismissed, her only right was to bring a suit within one year to establish her title.
2. The property sold in Court auction originally belonged to Swaminadha Mudali. The petitioner claims as a legatee under a will of Papammal, who purchased the property from Swaminadha Mudali in 1907. In 1911 when the property was attached by another creditor of Swaminadha Mudali, Papammal put in a claim petition and having failed therein, she instituted a suit and established her title in Second Appeal. Again the property was attached in 1915 by another creditor and upon a further claim petition being put in by her in 1915 and being dismissed, she brought a second suit which was dismissed for default. The appellant also preferred a claim petition in 1920 which was dismissed as too late and upon the sale being adjourned, she filed a second application on 9-2-1921 which was dismissed on 23-3-1921.
3. That being the history of the case, we must see whether the orders of the lower Courts can be supported for the reasons given therein. The District Munsif observed that the order passed on the petitioner's application before the sale was binding on her. He describes this petition as a similar one. The earlier application was one made under no definite provision of law, to have the sale stopped on payment of the decree amount, It may have been treated as an application under Order 21, Rule 2 for adjustment of the decree. The Court held that the petitioner had no locus standi to make the application and that money could not be received from her. There is no connection between her application made after the sale had taken place as a person holding an interest in the property sold to have the sale set aside under Order 21 Rule 89 and the application to pay the decree amount before the sale took place. The District Munsif has not decided that the petitioner is a person not holding any interest in the property either in his previous order or in the present order and so the previous order cannot operate as resjudicata to prevent her making the present application.
4. The District Judge has misconceived the effect of the claim petition. The purpose of a petitioner who makes a claim under Order 21 Rule 58 to a property attached is to have the attachment set aside. Granting that that right was negatived, there is nothing to prevent the same person coming forward and applying unconditionally to have the sale set aside under Rule 89 for the reason that he holds an interest in the suit property. The learned judge went on to observe that the petitioner's only remedy was to set aside the sale by a regular suit At the time when the application under Rule 89 was made, the right to bring a suit under Rule 63 had not become barred. That remedy, was still open to her. But so also was this other remedy. 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 sale source as the owners of an interest paramount to the judgment-debtor's; the second (that under Rule 58) implies the existence of a aright 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 judicata to prevent the admission of an application to pay the decree amount and get the property released after the sale. As the Courts below have not decided whether the petitioner owns or holds any interest in the property sold by virtue of a title acquired before the sale, that question must now be remitted to the District Munsif for decision upon the merits and for the disposal of the application made to him. The petitioner is entitled to recover costs of this Civil Revision Petition. Costs of the subsequent proceedings will be provided for in the final order.
Venkatasubba Rao, J.
5. I agree. I would like to add just a word. It has been argued that the applicant's right is based upon a title paramount to that of the judgment-debtor, and that Rule 89 is not therefore applicable and in support of the proposition, Dulhin Mathura Koer v. Bangsidhari Singh 15 C.L.J. 83 has been cited. With great respect I am unable to follow that decision. It seems to me that to take this narrow view of Rule 89 will in many cases defeat its object. Let me take an example. Supposing B sold a property worth Rs. 10,000 to A, that long subsequent thereto a decree was passed against B for the trifling sum of Rs. 10 and the decree-holder attached the property and brought it to sale why should A not be entitled to make the deposit and apply under Rule 89, if in his opinion it would not be worth his while to put himself to the trouble and expense of preferring a claim before a sale under Rule 58 or establishing after sale his right to the property in other legal proceedings? I am entirely opposed to unduly restricting the scope of the beneffcient provision enacted in Rule 89 when there are no words indicating that a narrow interpretation should be placed upon it.