Sadasiva Aiyar, J.
1. The decree holder and the Court auction-purchasers are the appellants before us.
2. The application under Order XXI, Rule 89, to the lower Court to set aside the Court auction sale was made jointly by the judgment debtors and persons who purchased the property from them privately after the Court auction sale.
3. The short question for decision in this case is whether a private purchaser from the judgment-debtor after the date of the Court auction sale but before the Court auction sale was confirmed can apply under Order XXI, Rule 89, (old Section 310-A) to have the Court auction sale set aside and if he cannot come in, can the judgment debtor do so.
4. The question may also be formulated in extenso as four separate questions thus :
1. Does such a private purchaser come within the meaning of the expression 'person owning such property' in Order XXI, Rule 89? In other words, does the fact of the existence of the unconfirmed Court auction sale prevent the subsequent private purchaser from 'owning the property,' that is, becoming the owner thereof by such purchase?
2. Even if he is a person 'owning the property,' as he did not own the property on the date of the Court auction sale, is he disentitled from claiming the benefit of the provisions of Order XXI, Rule 89? In other words, does the expression 'owning such property' in Order XXI, Rule 89, means 'owning property on the date of the application' or owning it on the date of the Court auction sale?'
3. Further, do the words 'by virtue of a title acquired before such sale' in Order XXI, Rule 89, govern the expression 'owning such property' or only the expression 'holding an interest therein?'
4. Is the judgment-debtor who has sold away his rights after the Court auction sale debarred from applying under Order XXI, Rule 89, because he had no interest on the date of the application and is the private purchaser from him also debarred, because he owned no interest on the date of the Court auction sale or 'by virtue of a title acquired before such sale ?'
5. Very learned arguments were advanced by Mr. Chenchiah for the appellants on all these questions and numerous cases were quoted. I am free to admit that many of the arguments were cogent and do raise considerable difficulties and doubt.
6. But this is pre-eminently a question where the principle of stare decisis should be followed and we have got the well-considered decision of this Court in Ananatha Lakshmi Ammal v. Kunnanchankarath Sankmran Nair 18 Ind. Cas. 579: (1913) M.W.N. 101 Benson and Sundara Aiyar, JJ. to the effect that the private purchaser can come in under Order XXI, Rule 89, and that the phrase ' by virtue of a title acquired before such sale' does not govern the words' person owning such property,' We have also got the decision of this Court in Adapa Subbarayudu v. Tippabhotlallakshmi Narasamma 22 Ind. Cas. 193: (1914) M.W.N. 147 that the judgment-debtor who has sold away his property cannot apply, as he had no interest in the property on the date of the application.
7. There are, doubtless, observations in Ishar Das v. Asaf Ali Khan 13 Ind. Cas. 184 and Pandurang Laxman Uphade v. Govinda Dada Uphade 18 Bom. L.R. 571 differing from the opinion expressed in the above decisions of this Court. I may add that those two decisions themselves in Ishar Das v. Asaf Ali Khan 18 Ind. Cas. 579 and Pandurang Laxman Uphadey. Govinda Dada TJphade 37 Ind. Cas. 211 take different views on some of these points. While Ishar Das v. Asaf Ali Khan 13 Ind. Cas. 184 takes the rather startling view (formulated in my 4th question above) that neither the judgment-debtor nor the private purchaser is entitled to apply, Pandurang Laxman TJphade v. Govinda Dada Uphade 37 Ind. Cas. 211 takes the no less startling view that the judgment-debtor who has absolutely no legal rights in the property on the date of the application to set aside the Court auotion sale is still entitled to apply. I do not think it necessary to deal in detail with the several weaknesses (if I may say so with great respect) in the reasoning in the decision in Pandurang Laxman Uphade v. Govinda Dada Uphade 37 Ind. Cas. 21118 Bom. L.R. 571. 1 do not also think it necessary to deal with the other Calcutta decisions quoted by the learned Advocate, the most important of which was dissented from in Anantha Lakshmi Ammal v. Kuhnan-chankatath Sankaran Nair 18 Ind. Cas. 579: (1913) M.W.N. 101.
8. I would, following the views enunciated in the decisions of this Court, answer the four questions thus : --
1st question : The private purchaser does come under the expression ' person owning such property.' The unconfirmed Court auction sale does not prevent the judgment-debtor from parting with the ownership by private sale.
2nd question.--I think the words owning the property' means owning on the date, of the application and not ' owning on the date of the Court auction sale.'
3rd question.--The words by virtue of a title' do not govern the expression 'person owning such property' but only the expression 'holding an interest therein.'
4th question.--The judgment-debtor who has Sold away his rights is debarred, but not the private purohaser from him.
9. The appeal is, in the result, dismissed with costs of the private purchaser, respondent.
10. Whether the judgment-debtor or the purchaser from such judgment-debtor, after the auction sale has been held but before it has been confirmed, is the person who should apply under Order XXI, Rule 89, to have the sate set aside on deposit of the purchase-money depends, in my opinion, on whether the judgment-debtor has Actually sold his interest unconditionally on the sale being set aside and has thus divested himself of all further interest in the property or has only agreed to sell it on that condition. When both the judgment-debtor and the private purchaser jointly apply, I can see no reason to refuse their joint application. I would not go so far as the learned Judges in Ishar Das v. Asaf Alt Khan 13 Ind. Cas. 184 have gone on this point in declaring that neither can apply under Rule 89. I prefer to follow the decision of this Court in Anantha Lakshmi Arnmal v. Kunnanchankarath Sank iran Nair 18 Ind. Cas. 579 : (1913) M.W.N. 101 which decided that a purchaser could apply. An application, such as this is, obviously is for the benefit of the judgment debtor who takes the last ahanoe of saving his property or some benefit from what is left of it, and I consider that the objection raised in Ishir Das v. Asaf Ali Khan 13 Ind. Cas. 184 to property being saved for the benefit of persons other than the judgment-debtor is thus avoided [see also the observations in Paniuranj Laxman Uphide v. Govinda Dada Uphade 37 Ind. Cas. 211 the judgment of Batchelor, J. The object of obtaining good bids at auction sales there considered to be an object of the Legislature in enacting this rule can usually be ensured by allowing the decree-holder to bid at the auction.
11. I agree that the appeal be dismissed with costs.