Ishwardas Marwari and Another vs Biseswar Lal Marwari and Others

Das, J.—Biseswar Lal Marwari, Begraj Marwari and Kissen Lal Marwari obtained a decree for Rule 33,587 as against the appellants, and in execution of the decree put up to sale the property which is the subject-matter of the present application. At the auction sale, the property was purchased by the decree-holders as also by one Salegram Marwari. The sale took place on the 23rd and 24th June 1924. On the 23rd July an application was presented on behalf of the appellants under the provision of Order 21, Rule 90 of the Code for setting aside the sale. In the cause title of that application Biseswar Marwari and Salegram Marwari appeared as the opposite party. A point was taken before the Court below that the application was not with the result that he dismissed the application without investigating the merits of the case. Hence the appeal to this Court.

Article 166 of the Limitation Act provides a period of 30 days for an application to set aside a sale in execution of a decree. The article refers to the application under Order 21, Rule 90 of the Code which provides for an application to set aside a sale on the ground of material irregularity or fraud in publishing or conducting it. Rule 92 provides that no order shall be made by the Court until notice of the application has been given to all persons affected thereby. The learned vakil appearing for the appellants contends that there is no limit of time under the Limitation Act for serving notices upon the persons affected by the order and that the learned Subordinate Judge should have acceded to his application for having notices served on the decree holders. In my opinion the contention is right and ought to be upheld. This view has been taken both by the Bombay High Court and in our Court In Ganesh Bab Naik v. Vithal Vaman Mahalaya [1913] 37 Bom. 387 the auction-purchaser was not made a party to the proceedings under Order 21, Rule 89 of the Code, and it was contended that the application was not maintainable in the absence of the auction-purchaser. Scott, C.J., with the concurrence of Chandavarkar, J., in dealing with the point said as follows:

The first point in this appeal is a preliminary point taken by the auction-purchaser that he was a necessary party to the application of the judgment-debtor under Order 21, Rule 89 and that the application is bad as he was not made a party to it within thirty days. The contention is based upon the decision of the Allahabad High Court in Ali Gauhar Khan v. Bansidhar [1893]15 All. 407. The point, however, is now provided for by the CPC of 1908. Order 21. Rule 92, which says that where in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale, provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

A similar view was taken by this Court in Mt. Bibi Zainab v. Paras Nath AIR 1924 Pat 37. The decision of this Court is binding on us, and it is a decision with which I entirely agree. The learned advocate appearing on behalf of the respondents contends that an application under Order 21, Rule 90, cannot be entertained by the Court unless all the persons affected by the application are named in the cause title. With great respect, I think that Rule 92 meets the objection completely. There is no particular meaning in the contention that it is necessary to have the parties affected by the application as parties to the application. The whole object of the rule is to provide that no adverse order should be passed in the absence of the persons affected by the order, and Rule 92 protects all the persons who may be affected by an adverse order by providing that:

no order shall be made unless notice of the application has been given to all persons affected thereby.

In one sense all the decree-holders are already parties to the proceeding; for an application under Order 21, Rule 90 is an application in the suit itself and therefore it seems to me that they are all parties to the proceeding. The auction purchaser is the only person who is not a party to the suit; but so far as the auction purchaser in the present case is concerned, he was cited as an opposite party in the proceedings under Order 21, Rule 90. In my opinion the learned Subordinate Judge should have acceded to the application of the decree-holders and issued notices upon those decree-holders who were not named in the cause title as the opposite party.

I would accordingly allow the appeal set aside the order passed by the Court below and remand the case to that Court for disposal according to law. Costs are reserved and will be dealt with by the learned Subordinate Judge.

Let the record be sent down at once.

Foster, J.

I agree.