Alladin vs Karimbux and others

Wanchoo, C.J.—This is a revision by Alladin against the order of the District Judge of Bhilwara in an execution matter.

The facts leading to this revision are these: The opposite parties Karim Bux and others obtained a decree against Alladin, judgment-debtor applicant. That decree was put in execution, and the property of Alladin, consisting of certain houses, was sold. Chhagan Lal was the auction-purchaser of this property. The sale took place on 23-4-1951. On 14-5-1951, the applicant applied to the Civil Judge, under O. 21, R. 90, for setting aside the sale on the ground of fraud or material irregularity in publishing and conducting it. He did not show the auction-purchaser Chhaganlal as a party in the heading to this application.

An objection was raised on behalf of the decree-holders on this ground, and thereupon Chhaganlal was added on 26-5-1951. Then another objection was raised to the effect that as Chhaganlal had been made party more than 30 days after the date of sale, the application under O. 21, R. 90 was barred by limitation. This plea prevailed with the executing Court which dismissed the application. There was an appeal to the District Judge who also upheld the contention, and dismissed the appeal. Hence this revision.

The only point, which is urged on behalf of the applicant, is that the executing Court was wrong in holding that the application was barred by limitation because the auction-purchaser had not been made a party till more than 30 days had gone by after the sale, and that by this wrong decision the executing Court refused to exercise the jurisdiction vested in it.

The argument is that it is not necessary in an application under O. 21, R. 90 to make anybody a party, and that it is the duty of the Court to give notice to the parties affected under the proviso to O. 21, R. 92(2), and ail that the law requires is that the application under O. 21, R. 30 should be made within 30 days. This matter has been the subject of consideration by the various High Courts, and the consensus of opinion now is that it is not necessary to mention the parties in the heading of the application under O. 21 R. 90, and that if any party is left out, it is the duty of the Court to give notice under the proviso to O. 21, R. 92(2), and the application will not be barred by time simply because some party, who is affected, is left out by mistake or otherwise.

The reason for this, to our mind, appears to be that the parties affected by an application under O. 21, R. 90 are already known to the Court. If the application is by the judgment-debtor, the parties affected obviously are the decree-holder and the auction-purchaser. On the other hand, if the application is by the decree-holder, the parties affected are the judgment-debtor and the auction-purchaser. Similarly if the applicant is the auction-purchaser, the parties affected are the judgment-debtor and the decree-holder.

All these parties are known to the Court when an application under O. 21, R. 90 is made by any of them. It would of course be advantageous if an application under O. 21, R. 90 mentions in the heading all the parties affected; but if it does not, it cannot, in our opinion, be said that the application is barred by Art. 166, Limitation Act provided it is filed within 30 days of the date of sale.

In - ''Ghazanfar Husain v. Ram Ratan'', AIR 1914 Oudh 307 (A), it was held that there was no absolute necessity for a judgment-debtor filing an application under O. 21, R. 90 to set out in the preamble of the application any formal array of parties, and therefore such an application should not be thrown out simply because an auction-purchaser was not shown therein as a party.

In the Allahabad High Court the view used to prevail that it was necessary to show the auction-purchaser also as a party in the application under O. 21, R. 90. This was based on the decision in - ''Karamat Khan v. Mir Ali Ahmad'', (1891) All WN 121 (B). In - Dip Chand Vs. Sheo Prasad and Others however, a different view was taken, and it was held that it was not necessary for an applicant under O. 21, R. 90 to indicate in the heading of his application the parties affected by it. This view was later followed in - Jit Singh Vs. Daulatia Tamta and Another and the prevailing view in that Court now seems to be that it is not necessary to show the auction-purchaser or the judgment-debtor or the decree-holder as a party in the heading of an application under O. 21, R. 90.

In - Nitai Dutta Vs. Bishun Lal Sao, , the Patna High Court held that it was not necessary for an applicant under O. 21, R. 90 to name the auction-purchaser as a party in the application, and that it was sufficient that the application was made within 30 days of the sale. This case followed the view which was generally prevalent in that Court though here and there was a dissenting note.

In - Radha Kisson Mahesri and Others Vs. Tansuk Mahesri and Others, , it was held by the Calcutta High Court that it was not necessary to describe the parties, who would be affected by the sale being set aside, formally in the array of parties in the heading of the application under O. 21, R. 90. This case followed the general view prevailing in that Court, though there also there was a dissenting note here and there.

In - ''Vithoba Chimanji v. Mahadeo Kesheorao'', AIR 1348 Nag 303 (G), it was held that the law did not require that an auction-purchaser should be impleaded as a party to the application under O. 21, R. 89, and that it was sufficient that he had notice of it before it was disposed of.

In - Addepalli Venkatarama Ayya Vs. Sait Khial Dass Topandoss by power of attorney Agent, Jathanand and Others, , it was held that an application under O. 21, R. 90 made without impleading the auction-purchaser is valid, and permission could be granted to make the auction-purchaser a party even though it was applied for beyond 30 days of the sale. The reasoning given in this case is different; but previous to this the Madras High Court also was taking the view that it was not necessary that the parties affected should be shown in the formal array of parties in the heading in an application under O. 21, R. 90.

The Bombay High Court has also been of the view that it is not necessary to make the auction-purchaser a party to an application under O. 21, R. 90, though the reason given by them is slightly different. In - ''Ganesh Bab Naik v. Vithal Vaman Mahalya'', 37 Bom 387 (I), it was held that the auction-purchaser was not a necessary party in an application under O. 21, R. 89, and therefore it was not necessary to implead him.

The Lahore High Court has also taken the same view though on a slightly different ground. In - AIR 1928 418 (Lahore) it was held that it was not necessary to implead in the sense of showing as a party in the heading of the application under R. 90, the successful auction-purchaser.

The consensus of opinion, therefore, of all High Courts is that if an application is made under O. 21. R. 90 within 30 days of the date of sale, it is the duty of the court to dispose it of, and the fact that there is no formal array of parties in the heading would not make the application barred by limitation, and that it is the duty of the court under the proviso to O. 21, R. 92(2) to give notice to all parties affected by the application.

In this view of the matter, we are of opinion that the courts below were wrong in holding that the application was barred by limitation, simply because the auction-purchaser was formally made a party on 26-5-1951, more than 30 days after the date of sale. The application had been made within 30 days, and the parties affected were known to the court, and it was the duty of the court to give notice to them under the proviso to O. 21, R. 92(2). By taking this wrong view the executing court refused to exercise the jurisdiction vested in it, and we are entitled to interfere under S. 115, Cl. (b), Civil P.C. 13. We, therefore, allow the application, and set aside the orders of the courts below, and direct the executing court to investigate into the application under O. 21, R. 90, as required by law. The applicant will get his costs of this Court, and of the District Judge''s court from the opposite parties. The costs in the executing court will abide the final result.