1. The question raised by this civil revision petition can be stated shortly. It is whether in proceedings under Order XXI, Rule 91 of the Civil Procedure Code, the person alleged by the auction-purchaser to be the real owner of the property sold is a necessary party. The lower Courts have hold that, .such person, the petitioner here,.- must be impleaded, disallowing the Objection which he made before them.
2. Their decisions are supported only by the argument ab inconvenienti : and it is, no doubt, true that the petitioner could not have obtained in a regular suit a fuller enquiry .than has been held. They have, however, overlooked the fact that he has been prejudiced in respect of his right of appeal. For against an order under Order XXI, Rule 92 'of the Civil Procedure Code, there is one appeal only, whilst, if petitioner had proceeded by suit (whether or not after claim or objection proceedings), second appeal would have been open to him. There is no reason for supposing that he cart be deprived of this advantage by the act that his title was disputed during the short period between the holding and confirmation of the sale.
3. (sic) (check whole para)The material provision of law, the proviso j Order XXI, Rule 92(2) of the Civil Pro-iduro Code, can in fact be interpreted con-stently with this objection. It provides for itice to 'all persons affected by' the applition. Huh the application will not affect a stranger to the proceedings who claims the property, since the relief contemplated in it, is only the return to the purchaser of his money. There is nothing in the proviso or elsewhere which entails that a claimant to the property need be affected, before an attempt is made to take delivery-of it from him or some person in possession under him.
4. No case directly in point has been referred to. The corresponding portion of the former Code was, no doubt, less widely expressed than Order XXI, Rule 92(2). But as regards refund of purchase-money Sivarama v. Rama 8 M.P 99. and Pachayappan v. Narayana 11 M.K 269. are clear authorities for the view that proceedings under Section 313 or Order XXI, Rule 91, do not necessarily end in any final decision and that the matter can be re-opened, according to the former case, by application under Section 315 or Order XXI, Rule 93 of the Civil Procedure Code, (that being the alternatives entailed by the circumstances before the Court in it) .or, according to the latter, by a regular suit. When even between the purchaser and decree-holder and as regards return of the purchase-money, such proceedings are not final, they cannot result in a final adjudication against a claimant such as the petitioner, and he cannot be held to be a necessary party to them.
5. In these circumstances, the orders of the lower Courts must, so far as they are against him, be set aside, the miscellaneous petition being dismissed as against him with costs throughout.