Kathiresan Chettiar vs Ramasami Chettiar and Others

Napier, J.—This is an appeal arising out of an execution application in the Court of the Subordinate Judge of Madura (East) under Order

XXI, Rule 90 of the CPC in O.S. No. 64 of 1909. The decree-holder in another suit O.S. No. 167 of 1908 had attached certain propertied of the

defendants and brought them to sale. The sale was held and the purchase money paid and received by the Court. Fourteen days after this payment

the petitioner herein presented an application for execution of the decree which he had obtained sometime previously, by the attachment and sale

of the properties above referred to with an application to set aside that sale and a further application for rateable distribution in the assets already

realized by the sale. The Subordinate Judge dismissed his application for rateable distribution on the ground that he was not entitled I to it not

having applied to the Court for execution of his decree before the receipt or the assets by the Court and for the same reason dismissed his

application to set aside the sale. This appeal is from that order,

In this Court the appellant does not ask for rateable distribution of the realised assets as he wishes the sale to be set aside on the ground of

fraud. He does not claim to be a "" person entitled to share in a rateable distribution of the assets"" but he contends that he is a person ""whose

interests are affected by the sale"" and is therefore entitled to apply. These words are newly inserted in the CPC of 1908 and are also to be found in

Rule 72 of the order. The language could certainly be read as wide enough to include a person in the appellant''s position if taken by itself, and it is

no answer that these words were inserted to set at rest doubts existing on the language of the old Code as to the meaning of the words "" whose

Immovable property has been sold."" It may be that the legislature intended by these words to describe persons claiming the judgment-debtor''s

interest and it may also be that this is the true construction of the rule, but it cannot be so held for the mere reason that these wider words were

substituted for the very narrow words in the previous Code, what we have to look to being the words themselves and not the intentions of the

legislature. It is sufficient, however, for the purpose of this case to decide as we do, that the applicant is not a person "" whose interests are affected

by the sale"" within the meaning of the rule. This conclusion can be arrived at by two methods. The first is that adopted in Jogendra Nath Chatterjee

v. Monmothanath Ghose 17 C.W.N. 80. There the Court held that the word "" interests "" must be limited to the property, the subject of the

application and that, as the subject matter of the sale sought to be set aside was the Immovable property sold, the interest that must have been

affected by the sale must have reference to the same property. Taking that view the court held that the applicant had no present interest in the

property, an attachment before judgment not giving him such interest. We agree that it is a necessary limitation of the word "" interests "" to confine it

to the property concerned as any either construction would open up an enquiry as to whether the appellant''s pecuniary interests required

satisfaction out of the property sold or whether there was other property available to him. It would further be difficult to draw a line between a

decree-holder and a person claiming to be a creditor--and if a creditor was a person whose interests were affected it would necessitate the trial of

his suit in the execution proceedings, a procedure which could never have been contemplated. There is another process leading to the same result,

which is this. The rule specifically gives power to apply to a ""person entitled to share in a rateable distribution of the assets."" These words are

added in the present Code, the old Code providing simply for the decree-holder. The words, therefore, extend the right to a person other than a

party to the suit or his representative but confine it to a certain narrow class of persons. If a person of the class of the applicant, namely another

decree-holder not entitled to share, is to be considered as covered by the relative words "" whose interests are affected by the sale"" we have this

extraordinary result, that the Legislature after inserting the words to extend the right and then confining it by very limited language has nullified the

effect of those words by words of wider application in the next sentence. In our opinion this is not an interpretation which can be properly put on

the language of the rule were any other construction possible, and we hold that any decree-holder who has not obtained the right to share in a

rateable distribution is not entitled to apply under the wider words of the succeeding sentence.

This appeal therefore fails and is dismissed with costs.

Sadasiva Aiyar, J.

I entirely agree.