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C.K. Chinnappa Chetty (Died) and ors. Vs. the Joint Family Firm of K. Gopala Chetty and Brothers by Manager Balaram Chetty and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 70 of 1956
Judge
Reported inAIR1957Mad744
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 89
AppellantC.K. Chinnappa Chetty (Died) and ors.
RespondentThe Joint Family Firm of K. Gopala Chetty and Brothers by Manager Balaram Chetty and anr.
Appellant AdvocateB.V. Viswanatha Iyar and ;O.K. Ramalingam, Advs.
Respondent AdvocateK.S. Sundaram, Adv.
DispositionAppeal allowed
Cases ReferredLakshminarasamma v. Satyanarayana
Excerpt:
- - so far as the judgment-debtor is concerned, the ruling of the full bench in 44 mad 554:air 1921 mad 157 (a) still holds good so that the application e. and the courts below were clearly in error in dismissing it as incompetent......air1943mad684 , where it was held that a person buying from a judgment-debtor after the execution sale may apply under order xxi, rule 89, for an order setting aside the execution sale.that decision was only in accordance with the amendment. but that decision did not go to the extent of holding that the only person competent to apply was the purchaser and not the judgment debtor. in fact, subsequent to the amendment, there has been no decision which was brought to my notice in which an extreme view has been taken that if there is a private sale after the court sale, the only person competent to apply would be the purchaser and riot the judgment debtor. there can be no such decision because 'the judgment-debtor' is expressly retained even in the amended rule and there is nothing to.....
Judgment:

Ramaswami Gounder, J.

1. This an appeal filed by the defendant against an order on his application filed under Order XXI, Rule 89. The property in question Was attached and brought to sale on 21-7-1955. On that date, it was sold and purchased by the second respondent, the first respondent being the decree-holder. The next day after the court sale, that is, on 22-7-1955, the judgment debtor who is the present appellant sold this property to one Ramaswami Aiyar for a sum of Rs. 4000. As purchaser, Ramaswami Aiyar filed an application under Order XXI, Rule 89, on 25-7-1955 after depositing the full amount due to the decree-holder.

While that application was pending, apparently on the advice of the judgment debtor's lawyer that that application would not be competent, the judgment debtor filed another application, E. A. No, 558 of 1955 on 17-8-1955 accompanied by the necessary deposit of the money. As the judgment debtor filed that application, it was considered that Ramaswami Aiyar's application was unnecessary and SO' it was not pressed and dismissed on 23rd August 1955. When the defendant's application, E. A. No. 558 of 1955, came on for hearing, the objection was raised that having parted with interest in favour of Ramaswami Aiyar, he was not competent to maintain the application under Order XXI, Rule 89. That objection found favour with both the courts below with the result that the application was dismissed. It is against that order that the present appeal is filed by the defendant.

2. It was held by a Full Bench of this court in Sundaram v. Mausa Mavuthar ILR 44 Mad 554; AIR 1921 Mad 157 (A), that a judgment debtor who after the court sale transfers his interest in the property sold in execution of a decree retains a sufficient 'interest' within the meaning of Order 21, E. 89 to allow him to apply under the rule. That Full Bench further held that the purchaser of such property after the court sale was precluded from applying under the rule. Thus, according to the Full Bench ruling, notwithstanding the subsequent private sale by the judgment-debtor, he alone was the only person competent to apply to set aside tile sale under that rule and not even the purchaser.

Subsequently, In 1936, there was an amendment to Order XXI, Rule 89, by which it was provided that where immoveable property had been sold in execution of a decree, the judgment debtor, or any person deriving title from the judgment debtor, or any person holding an interest in the properly, may apply to have the sale set aside. It will be seen' that this amendment enabled even the purchaser from the judgment debtor to apply under that rule because that person was precluded from applying by reason of the decision of the Full Bench. Subsequent to the amendment, there was a decision of a Bench of this court in Lakshminarasamma v. Satyanarayana : AIR1943Mad684 , where it was held that a person buying from a judgment-debtor after the execution sale may apply under Order XXI, Rule 89, for an order setting aside the execution sale.

That decision was only in accordance with the amendment. But that decision did not go to the extent of holding that the only person competent to apply was the purchaser and not the judgment debtor. In fact, subsequent to the amendment, there has been no decision which was brought to my notice in which an extreme view has been taken that if there is a private sale after the court sale, the only person competent to apply would be the purchaser and riot the judgment debtor. There can be no such decision because 'the judgment-debtor' is expressly retained even in the amended rule and there is nothing to indicate that 'the judgment-debtor' in the amendment should be one who continues to hold an interest in the property.

It will be seen that under the rule any other person holding an interest in the property may apply, so that 'folding an interest' is prescribed as a pre-requisite for the other persons to apply, whereas there is no such qualification attached to the judgment debtor. So far as the judgment-debtor is concerned, the ruling of the Full Bench in 44 Mad 554:AIR 1921 Mad 157 (A) still holds good so that the application E. A. No. 558 of 1955 was competent; and the courts below were clearly in error in dismissing it as incompetent. It may also be mentioned that in this case the private sale in favour of Ramaswami Aiyar was on the 22nd July 1955, that is, the next day after the court sale, so that it cannot be said that on the date of the court sale which gave rise to Ins right to apply the judgment debtor had no interest in the property.

3. The appeal is therefore allowed with costs in all the courts. Leave granted.


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