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Dhirendra Nath Roy and ors. Vs. Kamini Kumar Pal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in84Ind.Cas.119
AppellantDhirendra Nath Roy and ors.
RespondentKamini Kumar Pal and ors.
Cases ReferredSankaralinga Reddi v. Kandaswami Tevan
Excerpt:
civil procedure, code (act v of 1908), order xxi, rule 90 - execution of decree--sale--application to set aside sale--attaching creditor, whether can apply--interest, meaning of. - .....his application in which he prayed for rateable distribution and the courts held that he is not a person entitled to make an application under order xxi, rule 90. it has been argued before us that the view taken by the lower court is wrong; and further that though the petitioner has lost his right to share in the rateable distribution of the assets he is a person whose interests are affected by the sale and, therefore, he is entitled to maintain this application. in my opinion this contention has great force. the corresponding words in section 311 of the code of 1882 were 'any person whose immoveable property has been sold.' the change of wording in the new act indicates that the legislature thought it proper in view of the decision in asmut-unnissa begam v. ashruf ali 15 . 488 : 13.....
Judgment:

Suhrawardy, J.

1. Tins Rule raises an important question, viz., whether an attaching creditor, as such, is entitled to maintain an application under Order XXI, Rule 90, C.P.C. The facts of this case are that the opposite party and the petitioner are two rival decree-holders having obtained decrees against the same judgment-debtor. The petitioner at first attached the judgment debtor's property in execution of his own decree. Thereafter the opposite party executed, his decree attached the property and brought it to sale. Thereupon the petitioner applied to the Munsif in whose Court the decree was being executed to have the property re-sold on the ground that it was sold for a very inadequate price. He further applied to have the assets distributed rateably under Section 73, C.P.C, and also for such distribution of the assets after the resale. The Court having intimated its intention to reject his application he withdrew it. The effect of this withdrawal was that he gave up his right to the rateable distribution. He subsequently proceeded to execute his decree and brought this property to sale and purchased it himself. He now applied to have the sale by the opposite party set aside under Order XXI, Rule 90, on the ground of material irregularity. The Courts have proceeded upon an examination of one question, whether he is a person who is still entitled to a share in the rateable distribution of the assets, having withdrawn his application in which he prayed for rateable distribution and the Courts held that he is not a person entitled to make an application under Order XXI, Rule 90. It has been argued before us that the view taken by the lower Court is wrong; and further that though the petitioner has lost his right to share in the rateable distribution of the assets he is a person whose interests are affected by the sale and, therefore, he is entitled to maintain this application. In my opinion this contention has great force. The corresponding words in Section 311 of the Code of 1882 were 'any person whose immoveable property has been sold.' The change of wording in the new Act indicates that the Legislature thought it proper in view of the decision in Asmut-unnissa Begam v. Ashruf Ali 15 . 488 : 13 Ind. Jur. 54 : 7 Ind. Dec. (N.S.) 909 (F.B.) to widen the scope of the section. It may be profitable to note that the words that occur in Rule 90, namely, 'a person whose interests are affected by the sale' are even wider than the words that are to be found in Rule 89, namely; 'any person either owning such property or holding an interest therein by virtue of a title acquired before such sale.' This clearly shows that the person who has got a vestige of title in the property sold may apply under Rule 89 to have the sale set aside. But a person who is entitled to apply under Rule 90 to have the sale set aside may be a person whose interests are such (not necessarily the property) as may be affected by the sale. It cannot be said that an attaching creditor has no interest in the sale of the property, or, if I may go further, in the property itself. There is no authority directly in point, but from the observations made in several cases, some support may be found to the view that I have adopted. Reference may be made to the case of Jogendra Nath Chatterjee v. Manmatha Nath Ghose 15 Ind. Cas. 668 : 17 C.W.N. 80 : 16 C.L.J. 566. There the question was whether the plaintiff who had attached immoveable property before judgment had such interest as would entitle him to apply under Order XXI, Rule 90, to set aside the sale of the property in execution of another person's decree. The learned Judges held that he had not. But in coming to that conclusion they drew a distinction between a person who had obtained attachment before judgment and a decree-holder who had attached the property sold in execution of his decree. Reference may also be usefully made to the case of Sankaralinga Reddi v. Kandaswami Tevan 30 M. 413 : 17 M.L.J. 334 : 2 M.L.T. 365. There it has been held that an attaching creditor does not acquire any such charge on the attached property which will give him priority over another creditor but he acquires a right to have the property kept in custodia legis for the satisfaction of his debt, and an intentional interference without justification with any such right is an actionable wrong for which an action would lie, In that case a moveable property was attached in execution of a decree. It was removed by a third party. It was held that the attaching decree-holder may maintain a suit for the recovery of that property from the third party. If he had no interest in the property, it is difficult to see how he can maintain a suit for recovery of the same. It is argued on behalf of the opposite party that if the attaching creditor is a person whose interests are affected by the sale then the expression 'any person entitled to share in a rateable distribution of the assets' in the rule is superfluous. On the face of it this argument assumes some importance. But it is arguable that the first clause has reference to a particular class of persons, while the latter is of general application. Now, what are the interests which the petitioner has which are affected by the sale of the property by the opposite party? His case is that the property is liable to be re-sold because there was material irregularity and that the sale was brought about in collusion with the judgment-debtor. I can not say that such contention is groundless. It appears that this property was previously sold in execution of the decree of the petitioner for a higher price than that fetched at the present sale. The judgment-debtor applied under Order XXI, Rule 90 and had that sale set aside. The present sale is for a much lesser amount but the judgment-debtor has not taken any step to challenge it. It is further submitted to us on behalf of the opposite party that the effect of allowing the petitioner to contest the present sale is that in the event of his success in setting aside the present sale, his own sale would stand and the opposite party would have no further remedy. I am not concerned with what may be the effect of having the sale set aside. The only question with which we have to deal at present is whether the petitioner is a person who can maintain an application under Order XXI, Rule 90. It has also been urged with great deal of emphasis that the word, 'interest' in Rule 90, must be interest in property; that is interest which must be some sort of proprietary or possessory title. I am not prepared to restrict the meaning of a plain word so as to exclude all other interests such as pecuniary interest. In my opinion, the present petitioner is a person whose right to the property, however insignificant it may be, is affected by the sale. In this view of the law I am of opinion that the Rule ought to succeed.

2. The result is that this Rule is made absolute and the case sent back to the Court of first instance for disposal on merits. Costs will abide the result. We assess the hearing fee at one gold mohur.

Page, J.

3. I am of the same opinion. The issue in this case is whether the applicant was entitled to apply to the Court to set aside the sale of the property brought about by the opposite party. It is conceded having regard to the facts of this case, that the applicant was entitled to share in a rateable distribution of the assets realized by the sale under Order XXI, Rule 90, but it is said that he has lost his right to share in a rateable distribution of the assets because he applied that the assets which resulted from the sale should be rateably distributed and then withdrew that application. If that were so, I should be disposed to think that his right to share in the rateable distribution of the assets has gone. But I am not satisfied that this was what really happened. What happened was that when the sale took place the applicant applied to the Court that the bid of the execution creditor No. 1 should not be accepted and that the sale should go on, in which case, he stated that he would be willing to offer Rs. 700 for the property, the bid of the execution creditor No. 1 being only Rs. 145. He further applied that if an order was made that the sale should proceed on the terms suggested the assets realized by the sale should be rateably distributed, and that in that distribution the applicant should be entitled to share. The first application was refused and the applicant then withdrew the second one, and thereafter proceeded to purchase the property at the subsequent sale which was brought about at his instance. If that was what happened, in my opinion, the applicant never did make or withdrew an application for a share in the rateable distribution of the proceeds of a sale in which the execution creditor No. l's bid was accepted. All that he withdrew was an application to share in the proceeds of the sale made on the assumption that he was entitled to bid when the property was put up for sale; and if the occasion hereafter arises, it may be, if these proceedings to set aside the sale are dismissed, that it will still be open to the applicant to apply to share in a rate able distribution of the assets. As to that I express no opinion.

4. But there is another ground upon and which the applicant contends that he is entitled to apply to set aside the sale under Order XXI, Rule 90, namely, that the sale being an irregular or a fraudulent one his interests were thereby affected. The opposite party contends that an execution creditor who has obtained a writ of attachment is not a person whose interests are affected by the sale because in his contention the only persons connoted by the words 'those whose interests are affected by the sale' are persons who possess proprietary or possessory title to the property which forms the subject-matter of the sale which title will be destroyed if the sale is allowed to remain effective. In support of that contention the learned Vakil for the opposite party cited certain cases which had been decided under corresponding provisions in the old Code (Section 311). But it is to be observed that the words in Section 311 were 'any person whose immoveable property has been sold,' and that in Rule 90 there have been substituted the following words, viz., 'any person whose interests are affected by the sale.' The intention of the Legislature, in my opinion, when making this amendment of the language of the rule, was to enlarge the class of persons who would be entitled to apply under Rule 90. In my opinion 'persons whose interests are affected by the sale' is an expression which is not limited to persons whose proprietary or possessory title is affected by the sale. Now, is an execution creditor who has attached immoveable property a person whose interests are affected by a fraudulent or irregular sale? In my opinion, he is. It may well be that a decree in itself does not create a charge or a lien in favour of the decree-holder over the property of the jirdgment-debtor, and it also may be a sound contention that the attachment of property in execution of a decree does not of itself create in the decree-holder any title to such property, but in my opinion it gives him an interest in the property, and a very real interest, because the effect of obtaining a decree, and attaching immoveable property in execution of that decree is that the decree-holder becomes entitled to enforce the right which he has obtained under his decree against that property. Now, if the sale by another decree-holder is in fact collusive, it affects the right of the execution creditor who has attached the property at any rate to this extent, that if he is entitled to a share in the rateable distribution of the proceeds of the sale, he will receive a lesser amount than he would have obtained if the property had been sold for a fair and proper price, or again if he is not entitled to a share in the rateable distribution of the proceeds of the sale, there will be a less sum available after payment of the decree-holder's judgment debt for the purpose of liquidating the decretal amount to obtain which he has attached the property. In my opinion, the interests of the applicant were or might be seriously affected by the sale; and, in my judgment, he is entitled to have his application under Rule 90 heard upon the merits. For these reasons I agree with the order proposed by my learned brother.


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