Shankar Bhatta vs Ayyappa Gowda

Wallace, J.—This petition is put in by a purchaser after Court sale requesting this Court to revise the order of the lower Court refusing to set

aside the Court sale. The property sold was the property of a minor, Ayyappa Gowda, and one Changappa Gowda. It was sold in execution of a

decree obtained by Dasappa Banta. After the sale the judgment-debtors and the petitioner who had purchased from them moved under Order 21,

Rule 89 to have the sale set aside the minor being represented by his mother as guardian, and the requisite amount was deposited by the present

petitioner. Subsequently the judgment-debtors withdrew their application. The District Munsif held that it could not be maintained by the petitioner-

purchaser alone and that he had no locus standi in the petition after the judgment-debtors have withdrawn and so he dismissed the petition. It is

urged for the petitioner that the District Munsif erred in law, first, in not considering whether the withdrawal was for the benefit of the minor, and,

second in holding that the petitioner could not maintain the petition by himself.

As to the first point, it does not seem to have been raised at all before the District Munsif. No doubt under Order 32, Rule 7 (1) (a), it is the

duty of a pleader representing a minor to certify that a certain proposed action would be for the benefit of the minor. Whether or not this was done

I have no information. In any case there is absolutely nothing before me from which to infer prima facie that the withdrawal was not for the benefit

of the minor. I am not prepared to subscribe to the contention urged that it must always be to the benefit of the minor to have a Court-sale set

aside. Obviously no such proposition can be laid down. A resale may produce even less than the original sale. In this case also we have the fact

that the co-judgment-debtor, who owns a half share in the property did not press his application to have the sale set aside and does not even

appear here to support the petitioner. He was evidently satisfied that it was for his benefit that the sale should stand. It is urged that the price was

low, but it is not urged that it was not a proper sale, and the sale was held subject to a mortgage amount of Rs. 1,600 or thereabouts, There is no

evidence what the proper value of the property is. I cannot held it proved that the Court committed any irregularity or illgality from the point of

view of the minor''s interest.

As to the second point, it is clear law that the petitioner could not himself have maintained the application to set aside the sale. Is he then in a

better position because at first the judgment-debtors supported him and then withdrew? I find it difficult to see how he can be. It is urged that the

Court cannot allow his interest to be prejudiced by the withdrawal of the judgment-debtors, but ex hypothesi by force of Order 21, R. 89 he has

no legal interest in the matter, so that no legal interest of his will have been prejudiced.

Reliance is placed on a judgment of the Privy Council in Mahomed Rahimtulla v. Esmail Allarakhia A. I. R. 1924 P. C. 153. I do not see what

application that case has. In it certain parties had obtained a decree for possession of property conditional on payment of a certain sum within six

months and a subsequent mortgagee of the property paid the money into the Court to prevent the decree from becoming inoperative. When his

mortgage was redeemed he applied for the money. The decreeholders had sold their entire interest to a third party who was obviously also

interested in keeping alive the decree. It was held that the Subordinate Judge should not have allowed the mortgagee to withdraw the money

because others besides himself, namely, a third party purchaser, were interested in the performance on the condition under the decree. I do not see

how this applies to a case of an execution sale where ex hypothesi the subsequent purchaser of the judgment-debtor''s interest has no interest in the

matter sufficient to enabte him to sustain an application to set aside the sale......... see Full Bench ruling in Sundaram v. Mansa Mavuthar A. I. R.

1921 Mad. 157 and Saroda Kripa Lala v. Harendra Lal Das A. I. R. 1922 Cal. 271. The petitioner who cannot have the sale set aside on his

own application can no doubt employ the judgment-debtors for such a purpose but cannot insist on the Court compelling them to prosecute their

applition against their will.

Civil Miscellaneous Petition No. 363 of 1926, which is connected with this case, is a petition to remove the guardian, ad litem of the minor, that

is, his mother, on the ground that she is not in this matter properly looking after the interests of the minor. She refused service and has not chosen

to appear and contest. I think, therefore, that it is proper to remove her and appoint the petitioner. and I have accordingly heard him also in this

matter in the C. R. P. But obviously he cannot ask me here to hold the subsequent conduct of the guardian is proof of negligence in the matter of

the Court-sale, nor can I dispose of the C. R. P. on the grounds other than the lower Court had before it when it passed its order. I have only to

consider whether it irregularly or illegally exercised its jurisdiction in the matter of the C. R. P. No. 69 of 1924. That I am unable to hold and I,

therefore, dismiss the C. R. P. No. 69 of 1924 with costs, of 3rd respondent. C. M. P. No. 363 of 1926 is allowed without costs.