Ayyappa Naicker vs Kasiperumal Nayakar and Others

Alfred Henry Lionel Leach, C.J.—This petition raises the question whether a person who has obtained an attachment before judgment is a

person whose interests are affected within the meaning of Order 21, Rule 90 of the Civil Procedure Code, when the property attached has been

sold in execution of a decree obtained by another person. On the 30th November, 1932, the petitioner obtained an order for attachment before

judgment in respect of certain immovable property belonging to the second and third respondents and on the 3rd July, 1933, a decree was passed

in his favour. Some three weeks before the decree was passed the first respondent caused the attached property to be sold in execution of a

decree which he had obtained against the second and third respondents. On the 8th July, 1933, the petitioner filed a petition in the Court which

had ordered the sale (the Court of the District Munsif of Tuticorin) asking that the sale should be set aside on the ground that there had been

material irregularity. The District Munsif held that the petitioner was not a person who came within the section and dismissed the application. The

petitioner appealed to the Subordinate Judge of Tuticorin, who agreed with the District Munsif. The petitioner has now asked this Court to set

aside the orders of the lower courts under its revisional powers. It is not disputed that if the lower Courts erred in the interpretation of Rule 90 this

Court has power to interfere.

Rule 90 provides that where any 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 a material

irregularity or fraud in publishing or conducting it. Section 311 of the Code of 1882 which is now Rule 90 limited the right to apply to the decree-

holder or any person whose immovable property had been sold. There has been much judicial discussion on the meaning of the words ""whose

interests are effected by the sale."" Some Judges have expressed the opinion that these words must be taken to refer to a person having a

proprietary or possessory title in the property, but the opinion which now prevails is that the words do not have this narrow implication and are

intended to apply also to a person whose pecuniary interests are affected by the sale.

In Kathiresan Chettiar Vs. Ramasami Chettiar and Others, , a Division Bench of this Court composed of Sadasiva Aiyar and Napier, JJ., held

that a decree-holder who had not applied for execution, and therefore, was not entitled to rateable distribution of the proceeds of the sale was not

a person whose interests were affected by the sale within the meaning of the rule. They considered that the intention of the Legislature was to

confine the word ""interests"" to an interest in the property sold. As I have indicated, this interpretation is not in accordance with later decisions. The

meaning to be given to the words was fully discussed by Srinivasa Aiyangar, J., in Narayanan, minor by next friend Palani Goundan Vs. Pappayi

alias Karuppayi, . In that case the Court directed that two items of property which were the subject-matter of a mortgage decree should be sold

first and that only afterwards, if the sale proceeds proved insufficient, should another item of property which was covered by the same decree be

sold. After the passing of the decree the fourth defendant in the suit purchased the item of property which was to be sold last. He died before the

other two items were sold in execution of the decree. After they had been sold his legal representative applied for an order setting aside the sale on

the ground of irregularity and fraud. The learned Judge held that the legal representative of the fourth defendant was a person whose interests were

affected by the sale. He refused to accept the contention that the expression ""whose interests are affected by the sale"" should be construed as

though it meant that the petitioner must have some interest in the property itself and observed that, when the Legislature intended that the petitioner

should have some interest in the property itself it has used apt language. He pointed in this connection to the provisions of Order 21, Rule 89,

which limits an application under that rule to the judgment-debtor or any person deriving title from him or any person holding an interest in the

property. The learned Judge considered that the Legislature intended to confer the right to apply on any one who is directly and immediately

affected by the sale and with this opinion I am in entire agreement.

In Venkatesha Kamthi Vs. Vitla Bhakta and Another, , Beasley, C.J. and Bards well, J., held that a decree-holder who has obtained an

attachment before judgment is a person whose interests are affected by the sale. It was there conceded that a person whose pecuniary interests are

affected comes within the rule and that the words do not mean proprietary interests only. The case, however, differed from the present one in that

the applicant had obtained a decree before the Court sale.

The extent of the interest of a plaintiff in property attached before judgment was discussed by Benson and Wallis, JJ., in Sankaralinga Reddi v.

Kandasami Tevan (1907) 17 M.L.J. 334 : ILR 30 Mad. 413. In that case the question was whether the plaintiffs had sufficient interest in the

property to support an action against persons who had wrongfully removed crops from the land attached and it was held that they had. It was true

that the plaintiffs did not, by attaching the crops, acquire any charge on the attached property which would give them priority over other decree-

holders applying for rateable distribution or against the general body of creditors proving in an insolvency of the judgment-debtor, but none the

less, by virtue of the attachment the plaintiffs acquired a right to have the whole of the attached property applied in satisfaction of their debt if no

other creditor came forward, and in any case to have, a rateable proportion applied. In this sense the attaching creditor had a charge on the

attached property. The right of a plaintiff who attaches before judgment does not go beyond this and there is a long line of cases which shows that

he is not a secured creditor in the ordinary sense, but it is clear that he has some interest in the property.

In Dhirendra Nath Roy v. Kamini Kumar Pal I.L.R.(1924) 51 Cal. 495 a Division Bench of the Calcutta High Court also held that the

expression ""whose interests are affected by the sale"" is not limited to persons whose proprietary or possessory title is affected by the sale and that

an attaching creditor comes within the rule. In Jogendra Nath Chatterjee v. Monmotha Nath Ghose 17 C.W.N. 80 the Calcutta High Court held

that a person who attached before judgment had no present interest in the property and therefore was not within Rule 90, but in Sachai Gopinath

v. Firm of Kukari Pratap Chandra Saha 38 C.W.N. 172 another Division Bench of that Court held that a person who has attached before

judgment is a person within the purview of Rule 90. In the last mentioned case a decree had been obtained by the plaintiff before be made his

application and ft was on this ground that the earlier case was distinguished.

As I have already indicated, in Sankaralinga Reddi v. Kandasami Tevan (1907) 17 M.L.J. 334 : ILR 30 Mad. 413 this Court held that a person

who has attached property before judgment has sufficient interest in the property itself to maintain an action against a trespasser, but it is sufficient

to bring him within Rule 90 if his pecuniary interests are directly and immediately affected by any irregularity or fraud in connection with the sale

proceedings. I hold that a plaintiff who has obtained an attachment before judgment is directly and immediately affected in such circumstances, and

therefore is within the rule. The fact that he has not obtained a decree at the time lie filed his application does not in my opinion make any

difference. If he obtains a decree before making the application his position is, of course, strengthened, but the attachment before judgment is

sufficient in itself to bring him within the category of persons whose interests are affected by the sale. In the present case, the petitioner had

obtained his decree before he applied and he applied within time. It follows from what I have said that I consider that Kathiresan Chettiar Vs.

Ramasami Chettiar and Others, , was wrongly decided and should be overruled.

The decisions of the lower Courts being based on an erroneous view of the law their orders must be set aside with costs here and in the lower

appellate Court. The District Munsif will now proceed to dispose of the application in accordance with law.

Wadsworth, J.

I agree.

Krishnaswami Aiyangar, J.

I also agree.