Kartick Chandra Chatterji vs Nagendra Nath Roy and Others

Mullick, J.—It was never suggested in the Court of the Subordinate Judge that auction-purchaser was seeking to set aside the sale of the property in suit on the ground that the judgment-debtor had no saleable interest therein. His petition does not take any such ground and, therefore, that point is not open to him before us.

What he argued before the lower Court was that, as au auction-purchasers, he was entitled to come under Order 21, Rule 90, Civil Procedure Judge to get the sale set aside on the ground of fraud on the part of the decree holder. He contended that the decree-holder by not notifying the encumbrances on the property had induced him to pay Rs. 6,000, when the property was not worth that money. It has been settled in this Court, that the auction-purchaser cannot apply except under Order 21, Rule 91 Civil Procedure Code. Rule 90 is designed for the relief of the decree-holder and judgment-debtor so far as material irregularity and fraud are concerned; the auction purchaser cannot by pleading fraud take the benefit of that Rule and so it has been held in the Calcutta High Court, in Sheo Gobind Singh v. Dhanukdhari Singh 19 C.W.N. 1291 and by the Privy Council in Birj Mohun Thukur v. Rai Uma, Nath Chowdhry (1893) 20 Cal. 8 (P.C.).

It is urged, however, that the provisions of Rule 90 of the present CPC are wider than the provisions of the former Code and reliance is placed upon Bhavirisetti Gopala Krishnayya v. Sanjeeva Reddy (1920) 11 L.W. 184. With great respect to the learned Judges of the Madras High Court) who decided that case, it seems to me that the language of Rule 90 precludes us from holding that that Rule covers an interest which has been created by the sale itself.

Interests affected by the sale mean interests in the property existing before the sale and which have been adversely affected thereby.'' In this view of the case the appeal of the auction-purchaser cannot be entertained and the decision of the lower Court is affirmed.

The appeal is dismissed with costs.

Bucknill, J.

I agree.