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Surendra Nath Das Vs. AlauddIn Mistry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal828
AppellantSurendra Nath Das
RespondentAlauddIn Mistry
Cases ReferredKetra Mohan v. Dilwar
Excerpt:
- mitter, j.1. the rule arises out of an application made by the auction purchaser who is the opposite party to the rule under order 21, rule 91, civil p.c., to set aside a sale on the ground that the judgment debtor had no saleable interest in the property sold. the case made by the opposite party is that the property purchased by him was wrongly described in the sale proclamation. the wrong description is said to have consisted in (1) overstatement of the area: (ii) mention of the existence of a pucca privy on the land which really does not exist. it is said that if the auction-purchaser had not been misled in these two particulars he would not have purchased the property in question.2. the munsiff dismissed the application being of opinion that order 21, rule 91 of the code has no.....
Judgment:

Mitter, J.

1. The rule arises out of an application made by the auction purchaser who is the opposite party to the rule under Order 21, Rule 91, Civil P.C., to set aside a sale on the ground that the judgment debtor had no saleable interest in the property sold. The case made by the opposite party is that the property purchased by him was wrongly described in the sale proclamation. The wrong description is said to have consisted in (1) overstatement of the area: (ii) mention of the existence of a pucca privy on the land which really does not exist. It is said that if the auction-purchaser had not been misled in these two particulars he would not have purchased the property in question.

2. The Munsiff dismissed the application being of opinion that Order 21, Rule 91 of the Code has no application to the present case and that the remedy of the purchaser was by a suit.

3. An appeal was taken against this order to the District Judge of 21 Pargannas.

4. The learned District Judge held that Order 21, Rule 91 did not auply to the present case and stated that this point was conceded before him on behalf of the purchaser. But the learned District Judge remanded the case to the Court of first instance for a decision of the question whether there has been a material irregularity and whether the applicant has suffered substantial injury. The learned District Judge held, following the decision of the Madras and Allahabad High Courts and dissenting from the view taken in the Patna High Court, that an application under Order 21, Rule 90 could be made by an auction-purchaser as he is a person whose 'interests are affected by the sale' within the meaning of the said rule.

5. This rule was obtained for revision of the order of the learned District Judge directing a remand and the main ground on which this rule was issued was that the Court had no jurisdiction to entertain an application unier Order 21, Rule 90, at the instance of the auction-purchaser and consequently the learned District Judge having held that Order 21, Rule 91, did not apply was not right in remanding the case on the footing that the application of the auction-purchaser could be treated as one under Order 21, Rule 90.

6. It has been held on the highest authority that an auction-purchaser could not apply to set aside a sale under Section 311, 'Civil P.C., 1882, for Section 311 was limited 'to the decree-bolder or any person whose immovable property has been sold' which an auction purchaser was not: see Brij Mohan Thakur v. Uma Nath [1893] 20 Cal. 8.

7. In the present Code of 1908 the words are: 'Any person whose interests are affected by the sale' may apply to set aside the sale under Order 21, Rule 90. Can an auction-purchaser be regarded as such a person? I think not; for the interest here contemplated must refer to an interest not 'created by the sale' but affected by the sale. It is the sale to the auction purchaser which is to affect the interests and therefore the interest must have existed before the sale which affects that interest. It is true that if I contrast the language of Order 21, Rule 89 I find that Rule 89 contemplates an application by persons either owning the property sold in execution or holding an interest therein by virtue of a title acquired before such sale. It is improbable as has been pointed out in Abdul Aziz v. Tafizuddin [1915] 19 C.W.N. 326 that the divergence of language between Order 21, Section 90 and Rule 89 is accidental. It is true that the words 'persons whose interests are affected by the sale' are of wider import than the words of the Code of 1882, viz., 'person whose immovable property has been sold.' The latter expression was construed to mear 'any person whose interests were affected by the sale' by a Full Bench of this Court in the case of Asmutennessa Begum v. Asrag Ali [1888] 15 Cal. 488 (F.B.) and the legislature has adopted those words in the Code of 1908. It is necessary to look into the previous history of the legislation in order to determine whether the legislature intended to make such a violent departure from the provisions of the Code of 1882 so as to include an auction-purchaser within the expression 'poison whose interests are affected by the sale.' With great respect to the learned Judges of the Allahabad High Court I do not think the reference to the previous decision of the Judicial Committee in Brij Mohan Thakur v. Uma Nath Ghoudhury [1893] 20 Cal. 8 relating to the corresponding provision under the Code of 1882 is irrelevant in the present controversy, see: Ravinandan v. Jagannath : AIR1925All459 . The legislature must be taken to have knowledge of the decision of the Judicial Committee in Brij Mohan Thakur v. Uma Nath Choudhury [1893] 20 Cal. 8. What was there to prevent them from using the word the auction purchaser' in Order 21, Rule 90 after the word 'decree holder' if it was their intention to nullify the effect of the decision of their Lordships of the Privy Council in Brij Mohan Thakur v. Umanath Choudhury [1893] 20 Cal. 8.

8. Walsh, J, in the case referred to above observed as follows: The question whether an auction-purchaser is entitled to apply, depends on the question whether he is included in the expression a person whose interests are affected by the sale.' It is necessary to observe that this expression was not contained in the corresponding provisions which was in force up to 1908, and up to that date the auction-purchaser could not apply but could bring a suit. It follows, therefore, that for the purpose of determining this question the cases decided before 1908, or decided after 1908, with reference to proceedings which had begun before 1900, bearing upon the question whether auction purchasers could apply or could properly bring a suit, are wholly irrelevant, and for my part, I decline to look at them. Unfortunately I find them still cited as though they were relevant and authoritative, in text books dealing with the law under this rule and they have been cited as authorities in one decision from which I feel compelled to differ.

9. These observations of the learned Judge show a disregard of the accepted cannons of the construction of statutes, They are inconsistent with following accepted rules of construction laid down by their Lordships of the Judicial Committee of the Privy Council in the recent case of Abdur Rahim v. Mahomed Barkat Ali A.I.R. 1928 P.C. 16. Their Lordships say:

It is a sound rule of interpretation to take the words of a statute as they stand and to interpret them ordinarily without any reference to the previous state of the law on the subject or the English law on which it is founded: but When it is contended that the legislature intended by any particular amendment to make substantial changes in the pre-existing law it is impossible to arrive at a conclusion without considering what the law was previously to the particular enactment and to see whether the words used in the statute can be taken to effect the change that is suggested as intended.

10. In this view it was not only not irrelevant but it was essential to consider the terms of the corresponding provision in the Code of 1882 and further how that provision was interpreted in the decision of the Judicial Committee of the Privy Council.

10. The learned Judges of the Madras High Court would interpret the words 'interests' to mean 'interests' in the property acquired at the sale : see Gopala Krishnayya v Sanjeeva Reddy : (1920)38MLJ228 . It is difficult to understand how a person's interest can be affected by the sale unless those interests in the property sold existed prior to sale.

11. I think that the Patna High Court has taken the correct view in holding that the word 'interests' in Order 21, Section 90 must refer to interests existing prior to the sale: see Ketra Mohan v. Dilwar [1918] 3 Pat. L.J. 516.

12. The auction purchaser is not in my opinion, a person whose interests are affected by the sale but is a person who acquired an interest in the property sold by the sale and he has no locus standi to make an application under Order 21, Rule 90. The learned District Judge was not right in sending the case back to the Court of first instance for treating the application as one under Order 21, Rule 90. There suit is that the order of the learned District Judge is set aside and the application of the opposite party under Order 21, Rule 91 is dismissed. If there has been fraud and misrepresentation which induced the opposite party to bid at the sale and pay a larger price he has his remedy by suit. The rule is made absolute, but in the circumstances of the present cas3 there will be no order as to costs.


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