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Krishnama Naicken and anr. Vs. Sivasami Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1943Mad709; (1943)2MLJ281
AppellantKrishnama Naicken and anr.
RespondentSivasami Chettiar and ors.
Cases ReferredNarayan v. Pappayi
Excerpt:
- - but i am quite satisfied that it must be shown that there is an interest in the property itself under rule 89 and it is not enough that the party should be indirectly affected by the sale when he has no interest in the usual sense such as the interest of a judgment-debtor, mortgagee or as in one madras case even a lessee......then under consideration and the words of rule 90 are largely different, as is the object of the rule. rule 90 is to enable persons whose interests are affected by an irregular or fraudulent sale to apply to the court to set it aside. the words are, 'where any immovable property has been sold in execution of a decree, the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the court.' that the widest possible facilities should be given to anybody whose interests are affected is obviously reasonable and the full bench have in fact held that it is not a proprietary or possessory title which is meant by the words ' interests affected ' but that the words have a very much wider meaning. but in that.....
Judgment:

Mockett, J.

1. The petitioner in the lower Court is the first appellant and the judgment-debtor the second appellant. The first respondent is the decree-holder and the second and third respondents are said to be purchasers of certain properties. We have had great difficulty in ascertaining the facts in this case because of the incomplete state of the record. Arguments have, however, proceeded before us by consent on the following basis. There was an attachment before judgment sometime before the 15th March, 1939. On the 23rd March, 1939, certain properties which may be designated property Z were sold to the petitioner-appellant for Rs. 2,500 with instructions to pay the purchase price towards the decree. He paid Rs. 200 on the 25th July, 1939, and Rs. 300 on the 7th November, 1939, and both these sums were paid to the decree-holder and part satisfaction was entered. But he did not pay the balance. On the 27th March, 1940, by reason of this default other properties, which we will call properties X and Y, were sold to respondents 2 and 3. The first appellant now claims under Order 21, Rule 89, Civil Procedure Code, to have the sale dated 27th March, 1940, of properties X and Y set aside on depositing the amount payable under the decree with the necessary charges into Court. In the lower Court the learned Judge has held that he has no locus standi to make this application because he is not a person deriving title from the judgment-debtor or a person holding an interest in the property and that he could not therefore make this application. With that view I agree. From the plain reading of Rule 89 it seems to be clear that the title derived from the judgment-debtor must be in the properties the sale of which is sought to be set aside. It is impossible to envisage that any person who has at any time derived title in any property from the judgment-debtor should by reason of that fact be qualified to make applications with regard to a totally different property.

2. The other question that must necessarily arise on the facts is, is the applicant on the present facts one holding an interest in the property? Now the only facts on which he can argue are that he was under an obligation on account of a sale with regard to some totally different property to pay money towards the decree but he says that as these properties have had to be sold because of his default, he is a person interested because if he can put the matter right now under Order 21, Rule 89, he will be relieved from penalties following upon his default with regard to the sale of property Z. No authority has been cited in support of the very extended construction which we have been invited to put upon the words 'holding an interest in the property.' The only case cited in Madras where the word 'interest' is immediately concerned is in a Full Bench decision reported in Ayyappa v. Kasiperumal : AIR1939Mad250 . But it was not Rule 89 but Rule 90 which was then under consideration and the words of Rule 90 are largely different, as is the object of the rule. Rule 90 is to enable persons whose interests are affected by an irregular or fraudulent sale to apply to the Court to set it aside. The words are, 'where any immovable property has been sold in execution of a decree, the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the Court.' That the widest possible facilities should be given to anybody whose interests are affected is obviously reasonable and the Full Bench have in fact held that it is not a proprietary or possessory title which is meant by the words ' interests affected ' but that the words have a very much wider meaning. But in that judgment, Leach, C.J., draws particular attention to the distincti'on made by Srinivasa Ayyangar, J., in Narayan v. Pappayi : AIR1927Mad788 and says:

He (Srinivasa Ayyangar, J.) pointed in this connection to the provisions of Order 21, Rule 89 which limits an application under that rule to the judgment-debtor or any person deriving title from him or any person holding an interest in the property. The learned Judge considered that the Legislature intended to confer the right to apply on any one who is directly and immediately affected by the sale and with this opinion I am in entire agreement.

3. Now as already pointed out, prima facie the petitioner (appellant) does not come within the meaning of Rule 89. It is not suggested that he holds any title in the property the sale of which is sought to be set aside. The only title he holds is in some totally different properties. With regard to his interest it is not in the property at all. He may be affected because of his own breach of contract by not being allowed to set aside the sale. But I am quite satisfied that it must be shown that there is an interest in the property itself under Rule 89 and it is not enough that the party should be indirectly affected by the sale when he has no interest in the usual sense such as the interest of a judgment-debtor, mortgagee or as in one Madras case even a lessee. I can find no grounds whatever for placing the extended meaning that the first appellant asked us to place upon Order 21, Rule 89 and no authority has been placed hefore us which compels us to do so. I would accordingly dismiss this appeal with costs.


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