Ramanand Lal vs Barhamdutt Missir and Others

Dhavle, J.—This is an application in revision by one Ramanand Lal who claimed to deposit the amount of a certain decree under Order 21, Rule 89 in order to get an execution sale set aside.

His case was that Mukhan Ojha and Lachha Ojha, the judgment-debtors in a certain suit called Eent Suit No. 15 of 1928 which was indirectly under execution, in accordance with the compromise in an ejectment suit, (which compromise is now under execution) were his farzidars. The learned Munsif disallowed the application on the ground that the applicant''s interest cannot by any stretch of imagination be "affected by the execution sale." On behalf of the decree-holder, it was said in the lower Court that the applicant''s claim was correct and that he had a one-third interest in the property for which Mukhan and Lachha were recorded in the landlord''s sherista. The learned Munsif found it difficult on the affidavits before him to arrive at a definite finding on the point whether the applicant was a co-sharer in the holding or was a man of the decree-holder''s, and for the reasons already indicated he held that the point was immaterial. It has been contended on behalf of the applicant that the wording of Order 21, Rule 89 entitles him to make the deposit, which has been disallowed by the trial Court, and that this is a question of jurisdiction.

The application is resisted by the auction-purchaser, on whose behalf it has been contended in the first place that no revision lies in the present case because orders under Order 21, Rule 92 are appealable; but no order under Order 21, Rule 92 was apparently passed at the time the applicant came up to this Court in revision. His application under Order 21, Rule 89 had undoubtedly been disallowed, but the order under Rule 92 confirming the sale could not be passed at the same time if only because 30 days had not yet passed from the date of the execution sale, and this Court stayed further proceedings.

The next point urged on behalf of the auction-purchaser is that though Order 21, Rule 89 speaks of "any person, either owning such property or holding an interest therein by virtue of a title acquired by such sale," it does not confer the right to make a deposit on a person who had purchased the property so far back from the date of the sale and the execution proceedings that his interest was not affected by the sale.

This contention is supported by the decision in Dulhin Mothura Das Koer v. Bansidhar Singh 16 C.W.N. 904. This case was decided by Mookerjee and Caspersz, JJ. in 1911 before the establishment of this High Court, and the learned Judges observed that:

It would be an obviously unreasonable interpretation of Rule 89 to hold that any person might avail himself of the benefit thereof, even though admittedly he was in no way affected by the sale sought to be reversed.

This authority was binding on the trial Court. A contrary view has undoubtedly been taken in Adenna v. Chinna Ramayya A.I.R.1928 Mad 1191 where it was pointed out that the word "property" in Rule 89 must mean the tangible property sold, whether or not persons other than the judgment-debtor had any interest in it and it does not mean merely the right, title and interest of the judgment-debtor alone.

The learned Munsif does not refer to any decisions, and no decision of any consequence other than those from Dulhin Mothura Das Koer v. Bansidhar Singh 16 C.W.N. 9041 and Adenna v. Chinna Ramayya A.I.R.1928 Mad 1191 have been brought to my notice. If these two decisions had been brought to the notice of the learned Munsif, there could not be any question that he would have been bound to follow the decision from Dulhin Mothura Das Koer v. Bansidhar Singh 16 C.W.N. 9041. The Government Pleader who appears for the applicant has suggested that if, as I am inclined to think at present, the view taken in Adenna v. Chinna Ramayya A.I.R.1928. Mad 1191 is the more acceptable view, I might refer the case to a larger Bench, if as I hold the decision in Dulhin Mothura Das Koer v. Bansidhar Singh 16 C.W.N. 9041 is binding on me sitting singly. I am not prepared to adopt this course, my reason being that it was open to the applicant to wait for the order under Order 21, Rule 92 and appeal against it, reserving the question of jurisdiction to be raised, if necessary, by an appropriate application after the disposal of the appeal.

When I pointed this out the learned Government Pleader asked for permission to withdraw the present application. The permission is given. The auction-purchaser asks for his costs. In my opinion the costs of this application ought to be costs in the case.