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K. Suresh Babu Vs. K. Balasubramaniam and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1981)1MLJ1
AppellantK. Suresh Babu
RespondentK. Balasubramaniam and anr.
Cases ReferredGundu Venkatalingam and Ors. v. Kantheti Venkata Ranganayakulu
Excerpt:
- - a reading of this rule will clearly show that sub-rule (3) does not require that a court can set aside the sale under that rule only if the person who applies for setting aside the sale proves that he has sustained substantial injury by reason of the breach of order 21, rule 72(1), code of civil procedure. (2) no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. as far as the requirement that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or.....m.m. ismail, c.j.1. this is an appeal against the order of the x assistant judge, city civil court, madras dated 14th august, 1978, made in e.a. no. 1435 of 1977 in e.p. no. 391 of 1975 in o.s. no. 174 of 1975. e.a. no. 1435 of 1977 was filed for setting aside the sale which was held on 25th january, 1977, in execution of a decree obtained in o.s. no. 174 of 1973. the case of the petitioner in the execution application, who was the judgment-debtor, was that the purchase at the court auction was a benami purchase by the decree-holder and therefore the sale should be set aside. he also put forward the contention that the property was worth rs. 1,50,000 but it was sold only for an inadequate prise of rs. 30,150 and thereby he sustained a substantial injury. the learned assistant judge, city.....
Judgment:

M.M. Ismail, C.J.

1. This is an appeal against the order of the X Assistant Judge, City Civil Court, Madras dated 14th August, 1978, made in E.A. No. 1435 of 1977 in E.P. No. 391 of 1975 in O.S. No. 174 of 1975. E.A. No. 1435 of 1977 was filed for setting aside the sale which was held on 25th January, 1977, in execution of a decree obtained in O.S. No. 174 of 1973. The case of the petitioner in the execution application, who was the judgment-debtor, was that the purchase at the Court auction was a benami purchase by the decree-holder and therefore the sale should be set aside. He also put forward the contention that the property was worth Rs. 1,50,000 but it was sold only for an inadequate prise of Rs. 30,150 and thereby he sustained a substantial injury. The learned Assistant Judge, City Civil Court, Madras recorded a finding that the purchase at the Court-auction-sale was a benami one by the decree-holder. Having held so, in respect of the question whether the property fetched an adequate price or not, he did not render a definite finding. However, he did say in his order that the judgment-debtor sustained substantial injury by reason of the irregularity in the conduct of the same. On his finding that the purchase was a benami one by the decree-holder and no permission as contemplated by Order 21, Rule 72(1) of the Schedule to the Code of Civil Procedure, had been obtained and the judgment-debtor sustained substantial injury, he set aside the sale. It is against this order setting aside the sale the present appeal has been filed by the auction-purchaser.

2. When the appeal came up for hearing before a Division Bench of this Court, the learned Counsel for the appellant, having regard to the evidence available, did not challenge the findings that the purchase was benami for the decree-holder and no permission contemplated by Order 21, Rule 72(1) of the Code of Civil Procedure, was obtained. However, he contended that the learned Judge, not having given a definite finding on the adequacy or inadequacy of the price fetched at the Court-auction-sale, was not justified in giving a finding that the judgment-debtor sustained a substantial injury and a finding-that the judgment-debtor sustained substantial injury as a result of the decree-holder not obtaining permission contemplated under Order 21, Rule 72(1) of the Code of Civil Procedure is necessary for setting aside the sale. In support of this contention, the learned Counsel for the appellant relied on a Bench decision of this Court in Gundu Venkatalingam and Ors. v. Kantheti Venkata Ranganayakulu ILR (1955) Mad 675. The said decision certainly supports the contention of the learned Counsel for the appellant, namely, that even when a decree-holder or his benamidar purchases the property in Court-auction-sale without obtaining the permission of the Court under Order 21, Rule 72(2) of the Code of Civil Procedure, the sale cannot be set aside unless it is established that the judgment-debtor or any person interested in the property sustained a substantial injury. But the Division Bench took the view that having regard to the language of Order 21, Rule 72(3) of the Code of Civil Procedure, contrasted with the language of Order 21, Rule 90, Code of Civil Procedure, the abovesaid Bench decision, required reconsideration and therefore directed the matter to be placed before a Full Bench and that is how the matter is before us now.

3. We have now to proceed on the basis that there has been a violation of Order 21, Rule 72(1), Code of Civil Procedure, inasmuch as without obtaining the permission of the Court the property has been purchased in Court-auction benami for the benefit of the decree-holder and the judgment-debtor filed the application to set aside the sale on that ground. The question that requires to be considered is whether the judgment-debtor in addition to proving that the purchase at the Court-auction-sale was benami for the decree-holder should further prove that as a result of the decree-holder not obtaining the permission contemplated by Order 21, Rule 72(1), Code of Civil Procedure, he sustained substantial injury.

4. This question has to be now considered against the background of the relevant provisions contained in the Code of Civil Procedure. Order 21, Rule 72, Code of Civil Procedure, reads as follows:

Decree-holder not to bid for or buy property without permission.- (1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.

Where decree-holder purchases, amount of decree may be taken, as payment.-

(2) Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of Section 73, be set-off against one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.

(3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder.

A reading of this Rule will clearly show that Sub-rule (3) does not require that a Court can set aside the sale under that Rule only if the person who applies for setting aside the sale proves that he has sustained substantial injury by reason of the breach of Order 21, Rule 72(1), Code of Civil Procedure.

5. Now we can contrast the language contained in this Rule, usefully with the language contained in Order 21, Rule 90, Code of Civil Procedure. The Rule, after its amendment by Central Act CIV of 1976, reads as follows:

Application to set aside sale on ground of irregularity or fraud.- (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Explanation.- The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting-aside a sale under this rule.

As far as the requirement that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud, is concerned, there is no change in the language of the relevant provision before its amendment by Central Act CIV of 1976, and after its amendment by the said Central Act. Consequently, to enable a Court to set aside a sale under Order 21, Rule 90, Code of Civil Procedure, it must be established and the Court must be satisfied that the applicant has sustained substantial injury by reason of the irregularity or fraud complained of. In this respect, the language of Order 21, Rule 72(3), Code of Civil Procedure, differs basically from the language of Order 21, Rule 90, Code of Civil Procedure. Notwithstanding this basic difference in the language, the question for consideration is whether there is anything on principle to import the restriction provided for in Order 21, Rule 90, Code of Civil Procedure into Order 21, Rule 72(3), Code of Civil Procedure. As we pointed out already the learned Counsel for the appellant relied on the decision of a Bench of this Court in Gundu Venkatalingam and Ors. v. Kantheti Venkata Ranganayakulu ILR (1955) Mad 675 referred to already. That Bench did not give any independent reason for coming to the conclusion that before setting aside a sale under Order 21, Rule 72(3) Code of Civil Procedure, the Court should call upon the applicant to satisfy the Court that by reason of the failure on the part of the decree-holder to obtain the permission under Order 21. Rule 72(1). Code of Civil Procedure, the applicant had sustained substantial injury. What the Court did was to assume that such a principle has been laid down by a decision of the Privy Council in Rai Radha Krishna v. Bisheshar Sahay 44 MLJ 718 : LR 49 IA 312 : 16 LW 190 : (1922) ILR 1 Pat 733 : AIR 1922 PO 336 and therefore it had to follow the same. This is what the Bench says at page 677:

The second objection that, as the auction-purchasers were benamidars for the decree-holders and that as no leave to bid was obtained, the sale was a nullity as it contravened the provisions of Order 21, Rule 72, Civil Procedure Code, also is without force. It is no doubt true that the rule was contravened. But as pointed out by the Judicial Committee in Rai Radha Krishna v. Bisheshar Sahay 44 MLJ 718 : LR 49 IA 312 : 16 LW 190 : (1922) ILR 1 Pat 733 : AIR 1922 PO 336 the sale is only voidable as the rule itself requires an application by the judgment-debtor to set aside the sale on the ground that no leave to bid was obtained by the decree-holder before the sale. It was further held by the Privy Council that the sale was not only voidable but that it could be set aside only if it were established that the property had not been realized to the best advantage of the judgment debtor, meaning thereby that unless substantial injury was established a sale could not be set aside on the ground that it contravened the provisions of Order 21, Rule 72, Civil Procedure Code.

Since the Bench has simply purported to follow the decision of the Privy Council referred to already, we shall now consider what exactly was the question the Privy Council had to consider in the decision relied on. In that case, a suit was brought in 1914 by one Rani Mahabir Prasad, represented by the appellants before the Privy Council to recover possession of a village alleging that certain execution proceedings in which the village had been sold on 18th April, 1899, were illegal, collusive and fraudulent. The defendant in the suit who was the first respondent before the Privy Council, by his written statement denied the facts alleged, and pleaded that the suit was barred by limitation. The Subordinate Judge found that one Hari Narain, the purchaser at the sale, was merely a benarridar for the first respondent, as the plaintiff alleged. He held that the first respondent having purchased after the refusal of an application by him under Section 294 of the Code of Civil Procedure, 1882, corresponding to Order 21, Rule 72 of the present Code of Civil Procedure, for permission to do so, the sale was void and inoperative. In his view the case was governed by Article 141, and not Article 12, of Schedule I of the Indian Limitation Act, and the suit was therefore not barred by limitation. The decision of the Subordinate Judge was reversed by the High Court on appeal. It was thereafter the matter came before the Privy Council. The Privy Council had to consider two questions, one a question of fact as to whether the Court auction-purchaser was a benamidar for the decree-holder or not and the second a question of limitation as to whether the suit was barred by limitation or not. The Privy Council in its judgment has stated:

Upon the whole, their Lordships agree with the view of the High Court that it has not been proved that Hari Narain was benami for Bisheshar. This is sufficient to dispose of the appeal.

Once the Privy Council reached that conclusion, normally no further question could' possibly arise because the moment it was held that the Court auction-purchaser was 'not the benamidar of the decree-holder, there was no violation of Order 21, Rule 72(1) and therefore there could be no question of filing any application under Order 21, Rule 72(3.) of the Code of Civil Procedure. Nonetheless the Privy Council went into the question of limitation as that question was considered by the learned Subordinate Judge as well as the High Court. Dealing with that question, for the purpose of finding out as to which was the proper Article of the Schedule to the Indian Limitation that would apply to the suit in question, the Privy Council extracted the provisions of Section 294 of the Code of Civil Procedure, 1882(corresponding to Order 21, Rule 72), and proceeded to state:

Upon the construction of this section it is evident that a purchase by a decree-holder who has not obtained permission is not void nor a nullity, but is only to be avoided on the application of the judgment-debtor or some other person interested. It would be injurious to those interested in the sale if a decree-holder who had been forced up in the bidding to give a large sum of money could escape from fulfilling his contract by getting the sale declared a nullity, and it would make all titles under sales insecure if at later periods they were liable to be treated as nullities. A sale is to be set aside upon application and upon cause shown.

6. This position is well-established and seems to have been accepted by the Subordinate Judge; but in his view the fact that the decree-holder had applied for permission and had been refused made a distinction. Their Lordships, however, cannot see that this makes any difference. He is still a decree-holder who has not obtained permission to bid. He is that and nothing more. If indeed an application were made under the last paragraph of the section, his conduct might be one of the points which the Court would take into consideration in determining whether it would avoid the sale or not. It is doubtful even then whether it would be of any importance. The question would not be whether the decree-holder had been contumacious, but whether the property had been really realised to the best advantage. If it had not, the Court would set the sale aside; if it had, then it mattered not that the decree-holder bought without permission or that he had applied and been refused. If, then the sale is voidable only and not void, Article 12 in the Limitation Act of 1908, applies, and the suit must be brought within one year. Therefor it was too late.

Article 12 of the First Schedule to the Indian Limitation Act, 1908, which corresponds to Article 99 of the Schedule to the Limitation Act of 1963 runs as follows:

________________________________________________________________________________Description of suit Period of Limitation Time from which period begins to run.________________________________________________________________________________12. To set aside any of One year When the sale is confirmed, or the following sales: (a) would otherwise have become in execution of a decree final and conclusive had no of a Civil Court. such suit been brought.________________________________________________________________________________

Article 12 of the First Schedule to the Indian Limitation Act, 1908 dealt with a suit to set aside a sale in execution of a decree of a civil Court. In the Privy Council case, there was actually a suit to set aside the execution sale and therefore the Privy Council was considering the question of limitation with reference thereto. The Privy Council had no occasion to consider what are the requirements that must be fulfilled before a sale can be set aside on an application made by a judgment-debtor or any person interested in the property if the decree-holder purchases the property without obtaining the permission of the Court as contemplated by the law. With reference to the proper Article of the Limitation Act of 1908, that was applicable to the facts of the case before it, the Privy Council had to consider whether the sale held was void or voidable and the Privy Council came to the definite conclusion that the sale was not void but voidable only. Apart from this, the Privy Council had no occasion or necessity to consider any other question. Therefore, we are of the opinion that the Bench of this Court while deciding Gundu Venkatalingam and Ors. v. Kantheti Venkata Ranganayakulu ILR (1955) Mad 675 was wrong in taking the view that the Privy Council had laid down any such rule with regard to the setting aside of a sale on the ground that the decree-holder had bid at the auction without obtaining the permission of the Court. As a matter of fact, there is a further error in the said Bench decision. We have already pointed out that the language used by the Privy Council is only this:

The question would not be whether the decree-holder had been contumacious, but whether the property had been really realised to the best advantage.

The Privy Council did not use the words 'it must be established that the judgment-debtor or any person interested in the property should prove that he had suffered a substantial injury by reason of the failure on the part of the decree-holder to obtain the permission under the law.' The Bench of this Court, in the passage which we have extracted already assumed that the above expression of the Privy Council means that unless substantial injury was established, a sale could not be set aside on the ground that it contravened the provisions of Order 21, Rule 72, Code of Civil Procedure. In our opinion, the meaning to be given to the expression 'whether the property had been really realised to the best advantage' is totally different from the meaning that should be given to 'the judgment-debtor or any person interested in the property sustaining substantial injury'. The expression 'substantial injury' is much stronger than the expression used by the Privy Council in the judgment and they cannot be equated. Obviously the learned Judges of this Court who decided the case in Gundu Venkatalingam and Ors. v. Kantheti Venkata Ranganayakulu ILR (1955) Mad 675 were unconsciously influenced by the circumstances mentioned in Order 21, Rule 90, Code of Civil Procedure, and imported the language and requirement of that provision into that case and accordingly came to the conclusion which they did.

7. Now we shall consider the other decisions of this Court as well as other Courts on this point. As far as this Court is concerned, the earliest decision is that reported in Thathu Naick and Ors. v. Kondu Reddi and Ors. (1909) ILR 32 Mad 242 In that case, the holder of a mortgage decree brought the mortgaged property to sale in execution. He applied to the Court for permission to bid at the sale and the Court granted him permission, fixing an amount as the minimum at which he was to bid. The decree holder purchased the property at sale by Court in the name of a third party for a sum far less than the minimum fixed by the Court and less than the principal amount secured by the mortgage. The sale was confirmed and possession delivered to the purchaser, but actual possession remained with certain parties who had purchased the property from the original mortgagor. In a suit brought by the decree-holder, the auction-purchaser, as plaintiffs in the Court which executed the decree, against the original mortgagor, and the purchasers from them as defendants, the defendants who discovered the fraud of plaintiffs subsequent to the confirmation of sale, contended that the sale to plaintiffs was fraudulent and contrary to the provisions of Section 294 of the Code of Civil Procedure, 1882(corresponding to Order 21, Rule 72 of the present Code of Civil Procedure). The matter came before a Bench of this Court consisting of Miller, J., and Abdul Rahim, J., and both the Judges took the view that the confirmation of the sale was no bar to enforcing the right of defendants to set aside the sale, the fraud having been discovered only after such confirmation. However, the two learned Judges differed as to the remedy which was available to the defendants who discovered the fraud. Miller, J., took the view that the defendants were entitled to put forward their case in the written statement itself and have the sale set aside by way of answer to the plaintiff's claim. However, Abdul Rahim, J., took the view that the sale cannot be set aside except on an application by defendants under Sections 294 and 244, Civil Procedure Code of 1882, to the Court executing the decree. In view of this difference of opinion between the two Judges, the matter was referred to a third Judge, namely Sankaran Nair, J., who agreed with the view of Miller, J., in this behalf, namely as to the forum and the mode by which the defendants who discovered the fraud should establish the right and have the sale set aside. With reference to the effect of the failure to obtain permission of the Court, the learned Judge observed:

The next question is whether the sale should now he upheld. Where a decree-holder purchases property in contravention of the provisions of Section 294 and the judgment-debtor seeks to set aside the sale I am of opinion that it is unnecessary for the latter to allege fraud or that the property has not been sold for its proper value; it is for the decree-holder to satisfy the Court that the sale should be confirmed.

The next decision of this Court is that of a Bench of this Court in Kondapalli Tatireddi v. Diduvani Ramachandra Rao and Anr. 13. LW 616 : AIR 1921 Mad 402 The Bench held:

When a sale is set aside under Rule 72 on account of the decree-holder's failure to obtain permission to bid, it is not necessary to find also that the judgment-debtor sustained substantial loss by 'the sale'.

The next decision of this Court is the one in Kotta Govindarajulu Chettiar v. Sivaramakrishnan 65 LW 799 : (1952) 2 HLJ 294 : AIR 1953 Had 822. In that case also, a question, arose whether the purchase in Court-auction without the permission of the Court was a nullity or only voidable. The Bench held that it was only voidable and for this purpose it has relied on a passage in Halsbury's Laws of England, Vol. 28, page 73, paragraph 137 and also the decision of the Privy Council to which we have already drawn attention. Later dealing with the same question, the Bench pointed out:

Judgment-debtors were entitled to apply to set aside the sale and it would have been so set aside even without proof of damage or any loss if an appropriate application had been put in; but that was not done and the sale was confirmed. It is now too late for the judgment-debtors to have the sale set aside. The order of confirmation has become final and under the circumstances, as far as the judgment-debtors are concerned, the first defendant has got an indefeasible title.

8. Thus the above three decisions of this Court categorically and expressly state that where the decree-holder has purchased the property without the permission of the Court, the judgment-debtor, on an application made by him can have the sale set aside without the judgment-debtor 'proving that he suffered any damage or loss. Consequently, the decision of the Bench in Gundu Venkatalingam and Ors. v. Kantheti Venkata Ranganayakulu 65 LW 799 : (1952) 2 HLJ 294 : AIR 1953 Had 822. is directly opposed to the earlier three decisions referred to above. As we pointed out, independently that decision is also not correct in principle. We may also point out in this behalf that the decision of the Bench of this Court in Kotta Govindarajulu Chettiar v. Sivaramakrishnan 65 LW 799 : (1952) 2 HLJ 294 : AIR 1953 Had 822. referred to above, actually referred to the decision of the Privy Council on which the Bench in Gundu Venkatalingam and Ors. v. Kantheti Venkata Ranganayakulu ILR (1955) Mad 675. and relied on it but for a different purpose, namely on the question whether the sale was a nullity or only voidable. Thus it is clear that when the Bench decision in Kotta Govindarajulu Chettiar v. Sivaramakrishnan 65 LW 799 : (1952) 2 MLJ 294 held that the sale can be set aside without proof of damage or any loss, it did so only after considering the decision of the Privy Council indicating thereby that the Bench did not understand the decision of the Privy Council in the manner in which it was understood by the later Bench in Gundu Venkatalingam and Ors. v. Kantheti Venkata Ranganayakulu ILR (1955) Mad 675. These are the only decisions of this Court which have been brought to our notice.

9. The learned Counsel for the appellant brought to our notice two decisions of the Calcutta High Court. One is in Mathura Das v. Nathuni Loll Mahta (1885) ILR 11 Cal 731. That was a very short judgment which runs as follows:

Under the terms of the third para, of Section 294 of the Code (Code of 1882), it is discretionary with the Court of execution to set aside a sale in which the decree-holder has purchased without the permission of the Court having been first obtained. In dealing with such a matter, which we regard as an irregularity in conducting the sale, it should be taken into consideration whether any substantial injury has resulted, that is to say, whether, by reason of the decree-holder being the purchaser without permission of the Court previously obtained, an inadequate price has been realised at the sale. The judgment-debtor, appellant, has been unable to show us that the judgment of the lower Court, in holding that there was no such substantial injury is incorrect. There are other irregularities alleged by the appellant in publishing the proclamations; but it is unnecessary to consider them having regard to the finding that no substantial injury has resulted at the sale.

We are of the opinion that this judgment is not of any assistance to support the contention of the learned Counsel for the appellant.. Here again, a very reading of the judgment will show that the learned Judge treated an application to set aside a sale under the third para, of Section 294 of the Code of Civil Procedure, 1882, equivalent to an application to set aside a sale under Order 21, Rule 90 of the present Code of Civil Procedure, and that is, why they have imported the conception of 'substantial injury' into the judgment.

10. The other decision of the Calcutta High Court relied on by the learned Counsel is in Jiteswari Dassi v. Sudha Krishna Mukherjee A.I.R. 1932 Cal. 672. The relevant passage is as follows:

The question that next arises is whether the absence of the leave makes the sale void. Now if a decree-holder purchases without taking the permission contemplated by the Code, the words of Sub-section (3) of Section 294 of the Code of 1882, and Rule 72, Order 21 of the present Code, themselves show that the sale is not void nor a nullity but is only to be avoided on the application of the judgment-debtor or some other person interested. This is so even if permission was asked for and refused and considering the question whether the sale should be set aside or not, it will have to be seen whether the property has been realised to the best advantage: (see Rai Radha Krishna v. Bisheshar Sahay 44 MLJ 718 : LR 49 LA 312 : (1922) ILR 1 pat. 733(P.G.)).

Apart from merely repeating the language, of the Judicial Committee of the Privy Council, the above judgment does not lay down any principle whatever and therefore this also does not support the contention of the learned Counsel for the appellant.

11. No other decision was brought to our notice.

12. As we indicated already, on principle an application to set aside a sale made under Order 21, Rule 72(3) is an independent application independent in the sense that it is different from the application contemplated under Order 21, Rule 90, Code of Civil Procedure. When the two sets of provisions provide for two different application:, in the absence of any statutory compulsion, there is no justification whatever to equate the two and import into one set of provisions, the restrictions or limitation imposed in the other set of provisions. As we have pointed out already, Order 21, Rule 72(3) of the Code of Civil Procedure does not refer to the applicant sustaining any substantial injury at all while Order 21, Rule 90, Code of Civil Procedure, does refer to it and makes the proof thereof as a condition precedent for setting aside the sale. In view of this basic difference in the language, it is not possible to hold that the considerations applicable to an application under Order 21, Rule 90, Code of Civil Procedure, should be applied to an application under Order 21, Rule 72(3) of the Code. As a matter of fact at one stage of the arguments, the learned Counsel for the appellant pointed out that even the present application was filed under Order 21, Rule 90 of the Code of Civil Procedure. An erroneous statutory provision quoted or cited cannot determine the scope of the rights and liabilities of the parties and the Court will have to decide them in accordance with the correct provisions of law applicable to the facts alleged and established.

13. There is one other vital consideration which must be borne in mind. The requirement that a decree-holder must obtain the permission of the Court before purchasing the property is intended for the benefit of the judgment-debtor in view of the stronger position in which the decree-holder is placed. That is why Order 21, Rule 72(1) use the word 'shall' and not 'may'. That means, the obtaining of the permission of the Court is mandatory before a decree-holder can bid at the auction and purchase the property and if the decree-holder without obtaining such permission or in spite of refusal of such permission bids at the auction and purchases the property, certainly he contravenes a mandatory provision of law. Further the statute has deliberately used the word 'express' before permission thereby indicating the stringency of the provision it is making. Such a person cannot be allowed to take advantage of his own illegality by calling upon the judgment-debtor or any other person interested in the property who applies for setting aside the sale to prove that by reason of his illegality, the applicant has suffered substantial injury.

14. Having regard to all the above circumstances we are clearly of the opinion that art' application filed under Order 21, Rule 72(3) of the Code of Civil Procedure, is an independent application and it has to be dealt with in' accordance with the language contained in Sub-rule (3) of Rule 72 and that sub-rule does not insist that a sale cannot be set aside if it had taken place contrary to the provisions of that rule unless the applicant establishes that he has sustained substantial injury. In view of this we overrule the decision of the Bench of this Court in Gundu Venkatalingam and Ors. v. Kantheti Venkata Ranganayakulu ILR (1935) Mad 675 and confirm the order of the learned Judge setting aside the sale in the present case. The appeal is accordingly dismissed. There will be no order as to costs.


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