1. We are invited in this Rule to set aside an order by which the Court of first instance has refused to entertain an application to set aside an execution sale under Rule 90 of Order XXI of the Code of Civil Procedure of 1908. The order was subsequently affirmed on appeal by the District Judge.
2. It appears that one Jatindra Nath Roy held a decree for money against Hiranmoyee Dasi and Ors.. In execution of that decree the immoveable properties of the judgment-debtors were sold on the 19th April 1912 and purchased by the opposite party, Hemanta Kamar Biswas. Before the sale the petitioner, who also held a decree for money against the same judgment-debtors had, on the 13th March 1912, applied for execution of his decree. On the 20th May 1912, he applied to the Court to have the sale set aside under Rule 90 on the ground of fraud and material irregularity. This application was resisted by the auction-purchaser on the ground, amongst others, that as the application for execution made by the petitioner had been dismissed for non-prosecution on the 13th May 1912, he was not entitled on the 20th May 1912 to make an application under Rule 90 : The Courts below have given effect to this objection and the question for decision is whether the view taken by them is well-founded in law.
3. Rule 90 provides that where any immoveable 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 to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. The petitioner claims to be a person entitled to share in a rateable distribution of the assets. To determine whether he is a person of this description, we must examine the provisions of Section 73. That section lays down that where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons. In the case before us, the assets are held by the Court. It is also undisputed that more persons than one had before the receipt of the assets made application to the Court for execution of decrees for the payment of money passed against the same judgment-debtors. The assets were received on the 19th April 1912 and on the 29th April 1912. On the date first mentioned, the auction-purchaser brought into Court one-fourth of the purchase-money and the balance was deposited on the date last mentioned. Consequently, it is clear that before the receipt of the assets application for execution had been made by the petitioner as also by the person at whose instance the sale had taken place. As these conditions were fulfilled, it became the duty of the Court to distribute the assets rateably between the persons mentioned. It has been contended, however, on behalf of the opposite party that inasmuch as the application of the petitioner for execution has been dismissed for non-prosecution on the 13th May 1912, he was not : on the 20th May 1912, when he applied to set aside the sale, a person entitled to share in a rateable distribution of the assets within the meaning of Rule 90. In our opinion, this contention is unsound. The dismissal of the application on the 13th May 1912 for non-prosecution did not affect the right of the petitioner to share in a rateable distribution of the assets. It was the duty of the Court to grant him relief on the basis of his right which had accrued previously, for there is no suggestion that he had waived or abandoned his claim against the judgment-debtors. In our opinion, on the date on which the application to set aside the sale was made under Rule 90, it was made by a person entitled to share in the rateable distribution of the assets and, consequently, should have been entertained by the Court.
4. The result is that this Rule is made absolute and the order of the Courts below discharged. The record will be transmitted to the Court of first instance in order that the application under Rule 90 may be investigated. The petitioner is entitled to his costs, both here and in the Court of Appeal below : the costs, in the Court of first instance will abide the result. We assess the hearing-fee in this Court at two gold mohurs.