1. The facts of the case out of which this appeal has arisen are as follows: The petitioner held a mortgage-decree against one Kali Kanta Das. In execution of a rent decree against Kali Kanta the mortgaged property was sold and purchased by the opposite party Kasiruddin Sarkar. On 1st March 1921, within 30 days from the sale, the petitioner made the necessary deposit and filed an application under Order XXI, Rule 89, Civil Procedure Code. The Munsif passed the following order. 'One Raj Chandra Das applies for setting aside the sale on deposit of the decretal amount with compensation. He is to prove the mortgage. Fix 9th March 1921 for hearing. The decree-holder also to bring evidence if he likes.' On the 9th March following the order passed was: 'The applicant does not appear to prove his case and hence the application under Order XXI, Rule 89, Civil Procedure Code is rejected.' The petitioner appealed to the District Judge against the order of the Munsif rejecting his application under Order XXI, Rule 89, and the learned District Judge in a considered judgment expressed the opinion that, if on account of a certain bar in law the petitioner's application was not infructuous, he would have remanded the case to the First Court. He observes in one part of his judgment: 'I consider, therefore, that the case has been disposed of on a preliminary ground, and that should it otherwise appear desirable to do so, it would be open to me to make the order of remand asked for.' He, however, dismissed the petitioner's appeal on the ground that the auction-purchaser was not made a party to the application made under Order XXI, Rule 89, and hence that application was incompetent, inasmuch as the auction-purchaser could not be made a party at that stage as more than 30 days had elapsed since the sale. He was pressed by a decision of this Court in Ajiuddin Ahmad v. Khudabux Khondkar 50 Ind. Cas. 5, decided on the 27th January 1919 by Fletcher and Walmsley, JJ., and held that the auction-purchaser was a necessary party in an application like the present one, and as he was not made a party to this application within time, it would serve no useful purpose to remand the case to the Munsif.
2. The petitioner contends before us first that there is no provision in law enjoining that an auction-purchaser must be made a party. What the law insists upon is that before an order is passed setting aside a sale the auction-purchaser must have notice of the application under Order XXI, Rule 92, Clause (2). His second ground is that as a matter of fact he did mention the name of the auction-purchaser and it was for the Court to give him proper notice of the application.
3. With reference to the first point the Civil Procedure Code of 1882 did not expressly declare that the auction-purchaser must have notice of the application to set aside the sale either under Section 310-A or Section 311 of that Code or that no order setting aside the sale should be made in his absence. The point, however, came for consideration in several cases under the old Code before this Court and the majority of them held that on general principles an adverse order should not be passed against a party affecting his vested right without notice to him and behind his back, Kripali Singh v. Pairoo-Rout 5 Ind. Cas. 305 : 11 C.L.J. 86. In order to give effect to this view of the law a proviso has been added to Order XXI, Rule 92, of the present Code to the effect: 'provided that no order shall be made unless notice of the application has been given to all persons affected thereby.' All that the Statute now demands is that no order should be passed setting aside a sale without giving notice to the parties affected by it. The Statute or the case law does not go beyond the rule, namely, that no order should be passed without such notice. There is no provision in the law, nor have we been referred to any case where it has been authoritatively laid down that the auction-purchaser must be made a party in an application to set aside the sale. It is not clear what is meant by the expression 'made a party.' It seems to have been loosely used in some of the reported cases, but all these cases were decided to substantiate the rule that the auction-purchaser should be afforded an opportunity of being heard before an order was passed setting aside the sale. If by the expression it is understood that the parties to the application should be arrayed in the corresponding' categories of plaintiffs and defendants, there is no provision to that effect within the four corners of the Code of Civil Procedure. To hold otherwise would necessitate reading into the proviso to Order XXI, Rule 92 a mandatory provision which could have, had the Legislature so intended, been expressly mentioned. Reference may usefully be made to the Forms prescribed in the First Schedule, Appendix to the Code of Civil Procedure. Form 6 which is the form of application for execution of decree has a column in which names of the parties, namely, the plaintiff and the defendant are to be mentioned. All the other forms relating to execution have the word 'title' on top of them. By 'title' the names of the parties given in the application for execution are clearly indicated as all these applications and notices relate to the execution case. Form No. 36 which is the form of an application under Rule 90 (and is applicable to an application under Rule 89) has the same superscription. If any other 'title' including the name of the auction-purchaser was intended, the heading of the form would have been otherwise.
4. Coming to the facts of the present case it appears that the petition which the petitioner filed on the 1st March praying for permission to deposit the decretal amount and to have the sale set aside does not contain the name of any party to it save the names of the parties to the execution case. It is headed Naresh Chandra Lahiri, decree-holder v. Kali Kanta Das, judgment-debtor: and mentions the number of the execution case in which the property was sold. The name of the petitioner even does not appear at the top of it. In the body of the petition the applicant mentions the name of the auction-purchaser, the present contesting opposite party as the person who had purchased this property at the auction-sale. In my judgment this is sufficient compliance with the requirements of the law. No doubt the Court was incompetent to pass any order without notice to the auction-purchaser, but notice which the law thus enjoins upon all parties affected by the sale may be issued at the instance of the petitioner or even at the instance of the Court. It is apparent from the order passed by the Court on this petition directing the decree-holder to bring his evidence if he liked that the learned Munsif at that stage thought that the only party affected by the sale was the decree-holder. If it were subsequently discovered that the auction-purchaser had not got notice of the application, it was open to the Court to direct service of notice upon him before passing any order on the application. It appears desirable that in an application for the setting aside of a sale the Court, without reference to the parties mentioned in the petition, should direct issue of notice of the application upon the decree-holder the auction-purchaser and any other party who may appear to have been affected by the sale.
5. The case on which the learned Judge relies does not lay down the exact proposition that the auction-purchaser must be made a party in the sense in which that expression is used in Connection with suits. There the learned Judges were considering the question whether the auction-purchaser was a necessary party to the application. It may be that in that case the auction-purchaser was not even mentioned in the petition. The judgment in the case does not show the real facts and so I am unable to hold that it in any way lays down a view contrary to that which I have expressed above. I have sent for and examined the record of this Court in that case and find that it was an application under Order XXI, Rule 90 and that the sale in that case took place on May 5, 1916 and the application to set it aside was made on October 4, 1917. An application was made by the judgment-debtor on November 8, 1918, to make one of the auction-purchasers party to the case. These were the peculiar features of that case on which the judgment of this Court is justifiable.
6. The second point raised by the learned Vakil for the petitioner had been virtually answered by my observations with regard to the first point. I am of opinion that it is enough for the purposes of an application under Order XXI, Rule 89 that the auction-purchaser is mentioned by name, The present application was filed in time and was in order.
7. As I have observed the learned Judge was willing to send the case back for hearing on the merits, had he taken the view of the law we have now adopted. It, therefore, remains for us to pass the order which the learned Judge should have made in this case. The order of the Munsif, dated the 9th March 1921, will, therefore, be set aside and the case sent back to him for hearing on the merits. We allow no costs.
8. I agree.