K.K. Dutta, J.@mdashThis appeal arises out of a suit instituted by she Receiver appointed by the court of the 2nd Additional District judge in Trust Administration Suit no. 12 of 1946. This appointment was made with respect to the properties forming subject-matter of a Trust known as "General Trust Tekari Raj" which, according to the plaintiff''s case, included besides other properties the premises known as Ganga Mahal, situated in ward no. 1 of Gaya Municipality, which have been fully described in Schedule A of the plaint. The properties comprising the aforesaid Trust originally appertained to the Tekari Raj Estate and it is the admitted case of the parties that the same had come into lawful possession of defendant no. 2 Rani Bhuneshwari Kuer as a result of some transfers in her favour. The case of the plaintiff, as made out in his plaint, was that in the year 1941, defendant no. 2 executed a registered Deed of Trust whereby the aforesaid General Trust Tekari Raj was created and thereon the Ganga Mahal as well as various other properties which formed the subject-matter of the Trust, duly came into possession of the aforesaid Trust. It was further alleged that subsequently defendant no. 1 Kanchan Devi obtained a decree against Rani Bhuneshwari Kuer (defendant no. 2) in a rent suit, namely, Kent Suit no. 20 of 1952 of the Court of Munsif 1st Court, Gaya, on account of arrears of rent with respect to same property which had been inherited by defendant no. 2 and her sons on the death of the husband of defendant no. 2 namely, Raja Bahadur Harihar Prasad Singh of Amawan. It may be mentioned here that many years before the institution of the aforesaid rent suit, there was a dispute between Raja Bahadur Harihar Prasad Singh on the one hand and Basudeo Narain Singh alias Bachu Singh and Lalmani Singh on the other with respect to certain lands in village Mirganj and this dispute was ultimately settled by an Award made by Mr. J.T. Whitty, the then District Magistrate of Gaya to whom the dispute had been referred for arbitration. The Award was duly given effect to by execution of two registered deeds dated 31.1.1916 and 2.4.1916, whereby the possession of the disputed lands was made over to Raja Bahadur Harihar Prasad Singh, who, on his turn, agreed to pay Rs. 753/4/- per year to Basudeo Narain Singh. In the year 1917, the family of Basudeo Narain Singh executed a mortgage bond in favour of one Devi Bux of Gaya with respect to the above right and, later on Devi Bux instituted a mortgage suit against his mortgagors and in execution of the decree obtained by him in that suit, he himself purchased the aforesaid property, namely, the right to receive a sum of Rs. 753/4/- per year from Raja Bahadur Harihar Prasad Singh. The aforesaid court sale took place on 19.2.1934 and later on Devi Bux sold his rights to defendant no. 1 Kanchan Devi by virtue of a registered deed dated 25.5.1938. Kanchan Devi thereafter, started realising the aforesaid amount of Rs. 753/4/- per year payable by Raja Bahadur Harihar Prasad Singh and she subsequently instituted Rent Suit no. 20 of 1952 for recovery of arrears of rent for the years 1356 to 1359 Fasli. Raja Bahadur Harihar Prasad Singh had already expired in the year 1951 and hence the suit was instituted against defendant no. 2, that is the widow of Raja Bahadur Harihar Prasad Singh and his sons. Although in the plaint of the present suit, it was alleged that the decree in the aforesaid rent suit was passed as against Rani Bhuneshwari Kuer (defendant no. 2) alone and no decree was passed against her sons, this allegation appears to have been given up at the time of the hearing and as shown by the judgment and decree (Ext. 12 and E) which relate to that suit, the decree therein was passed both against Rani Bhuneshwari Kuer (defendant no. 2) and her sons. It appears that subsequently this decree was put into execution in Execution Case no. 456 of 1953 of the Court of Munsif 1st. Court, Gaya, and as a result of court sale held on 7.6.1954, the entire Ganga Mahal, that is, the property forming subject-matter of the present suit, was purchased by the decree holder, namely, defendant, no. 1 Kanchan Devi. After the sale, Rani Bhuneshwari Devi (defendant no. 2) filed a Miscellaneous Case no. 207 of 1954 on 6.7.54. This was dismissed for default on 6.11.1954 and on the same day, that is, 6.11.1954 the sale was confirmed (Vide--Order-sheet Ext. C), Thereafter, on 16.11.1954, Shri Brijkishore Prasad, who had been appointed as Receiver as per order passed by the 2nd Additional District Judge, Patna in Trust Administration Suit no. 12/7 of 1946/64 filed an application for setting aside the sale which was registered in Miscellaneous Case No. 364 of 1954. This case was dismissed on 3.12.1954 and, thereafter, the suit out of which the present appeal arises was instituted by the Receiver on 2.4.1953. His case was that as the entire Ganga Mahal was part of the properties appertaining to the General Trust Tekari Raj and the same was in his possession in his capacity as Receiver of the Trust properties, the sale held in the aforesaid case, which took place in execution of a decree obtained against Rani Bhuneshwari Kuer and her sons, was altogether void and inoperative and was not binding upon him. On these allegations, he prayed for a declaration to that effect. It further transpires that a portion of the Ganga Mahal was in actual occupation of an Institution known as "Vidya Mandir" as a monthly tenant and during the pendency of the present suit, this Institution deposited a sum of Rs. 2200/- with the House Controller on account of arrears of rent to the credit of the plaintiff as well as defendant no. 1. The defendant no. 1 had previously instituted a suit in the Court of the Subordinate Judge. 1st Court, namely, S.C.C. Suit No. 89 of 1955 as against the Vidya Mandir on account of arrears of rent and obtained a decree therein. This decree was put into execution in Execution Case No. 55 of 1956 of the Court of Subordinate Judge, 1st Court, Giya, and the Institution deposited Rs. 562/8/6 in that execution case. In view of these facts, the plaintiff got the plaint amended and prayed for an injunction restraining defendant no. 1 from withdrawing the aforesaid amount of Rs. 562/- and odd and from executing the decree by attachment of Rs. 2200/- lying in deposit with the House Controller with a further alternative prayer for a decree against defendant no. 1 for the sum of Rs. 2200/- if it is found that the said amount has been withdrawn. The suit was contested by defendant no. 1 and her case, as made out in the written statement, was that the Ganga Mahal was never in possession of the Receiver or of any Trust and the same had all along been in possession of defendant no. 2 and her sons. Her case further was that even if any deed of trust had been created by defendant no. 2 with respect to this property, the same was a mere sham transaction which had never come into operation and it was merely a device to defraud the creditors. The sale held in Execution Case no. 456 of 1953 was a perfectly valid sale, according to this defendant, and her case further was that the present suit was barred by the provisions of Order 21 Rule 92 of the Code of Civil Procedure. Some other pleas were also taken in the written statement with which we are no longer concerned in the present appeal.
2. The trial court came to the finding that the deed of trust executed by Rani Bhuneshwari Devi (defendant no. 2) in the year 1941 was a valid document and it had duly been acted upon and had come into operation. The plea about the transaction being a sham one was rejected by that court. It was further held that the whole of Ganga Mahal was included in the Trust as a result of the modification of the original Deed of Trust by the compromise decree passed in Title Partition Suit no. 23 of 1941. The trial court further held that the Receiver appointed by the 2nd Additional District Judge, Patna, in Trust Administration Suit no. 12 of 1946 was in actual possession of the Ganga Mahal at the time when the attachment of this property and sale thereof in favour of the defendant no. 1 took place in Execution Case no. 456 of 1953. The trial court rejected the defendant no. 1''s objection as to the suit being non-maintainable in view of the provisions of Order 21 Rule 92 of the Code of Civil Procedure. In accordance with these findings, the suit was decreed by the trial court and the sale in Execution Case no. 456 of 1953 was held to be not binding upon the plaintiff-Receiver. The plaintiff-Receiver was further held to be entitled to withdraw the amount of Rs. 2200/-deposited by the Vidya Mandir and, in the alternative, to recover the same from defendant no. 1 in case she had withdrawn the same.
3. The lower appellate court came to the finding that the defendant no. 2 and her sons had no personal liability for payment of the decretal amount for which Rent Suit no. 20 of 1952 was decreed and they were liable only to the extent of assets inherited by them from Raja Bahadur Harihar Prasad Singh. In accordance with this finding, it was held that the sale of the Ganga Mahal in execution of that decree was not valid and binding and was liable to be set aside, whether it was a personal property of defendant no. 2 or a trust property, as this property had not been inherited by defendant no. 2 and her sons from the Raja Bahadur, The lower appellate court further held that as a result of modification of the original Deed of Trust by the compromise decree in Title Partition Suit no. 23 of 1941, the whole of Ganga Mahal became a trust property subject only to the right of the Rani (defendant no. 2) to reside in any portion thereof. The trust was further held to be a valid one and to have been duly acted upon. It was accordingly held that the Ganga Mahal could not be sold in execution of the decree in Rent Suit no. 20 of 1952 as it did not belong to defendant no. 2 being a trust property, That court further came to the finding that the Receiver appointed in Trust Administration Suit no. 12 of 1946 was in possession of the Ganga Mahal at the time of the attachment and sale in Execution Case no. 456 of 1953. It was accordingly held that the leave of the Court was necessary for the attachment and sale and as the sale had been held without obtaining such leave, it could be avoided by the Receiver either by petition under Order 21 Rule 92 or by way of a suit. The lower appellate court, however, held that the present suit is barred by the provisions of Order 21 Rule 92 of the CPC and hence although it agreed with the other findings of the trial court, the appeal preferred by the defendant no. 1 was allowed and the judgment and decree of the trial court were set aside and the suit was dismissed.
4. It may be mentioned here that the suit was originally instituted by Shri Brijkishore Prasad, Advocate, in his capacity as Receiver of General Trust Tekari Raj but, subsequently, as per order of the trial court dated 5.6.1956, Shri Satish Kumar Banerjee, Advocate, was substituted in his place on basis of an order appointing Shri Satish Kumar Banerjee as Receiver in place of the former Receiver. The present appeal has been preferred by Shri Satish Kumar Banerjee who, it appears, is still continuing as Receiver of the aforesaid Trust.
5. The finding of the learned Additional Subordinate Judge that the sale of Ganga Mahal held in Execution Case no. 456 of 1953 is not valid as the Rani and her sons were not personally liable for payment of the amount of decretal dues in Rent Suit no. 20 of 1952 and were only liable to the extent of assets inherited by them from the Raja Bahadur appears to be quite erroneous. As would appear from the decree (Ext. E) the aforesaid rent suit was instituted on 8.10.1952 on account of the rent for the years 1356 to 1359 Fasli The year 1359 Fasli corresponds to 1951-52 A.D. 30th Bhado, the last day of this year corresponds to 4.9.1952. This rent suit was admittedly instituted after the death of the Raja Bahadur and as would appear from the judgment of the learned Additional Subordinate Judge, the Raja Bahadur had died during 1951 A.D. There cannot thus be any doubt that the properly with respect to which the aforesaid rent suit was instituted had been inherited by the Rani and her sons in the year 1951 and as such they were personally liable for a part of the arrears of rent for which the aforesaid rent suit was instituted, that is, the rent which accrued after the death of the Raja Bahadur in the year 1951. Thus the finding of the learned Subordinate Judge that the Rani and her sons were liable for payment of the decretal amount of the aforesaid rent suit only to the extent of the assets inherited by them from the Raja Bahadur and that, as such, the Ganga Mahal could not be sold in execution of such a decree as this property was not inherited by the Rani and her sons from the Raja Bahadur, is altogether wrong. The validity of the sale of Ganga Mahal as held in the execution case is not, therefore, liable to be challenged on this ground.
6. The next question that arises for determination is whether the Ganga Mahal is a Trust property included in the General Trust Tekari Raj and was, therefore, not liable to be sold in execution of any decree as against the Rani and her sons. As already mentioned, in the written statement filed by the defendant-respondent no. 1, the aforesaid Trust was challenged as being a mere sham and fictitious transaction and having been never acted upon. No specific plea was taken in the written statement about any part of the Ganga Mahal being not included in the properties forming the subject-matter of the Trust. However, this matter also appears to have been considered by the courts below and both the courts below have come to the concurrent finding that the whole of the Ganga Mahal was included in the Trust and that the Trust was duly acted upon and was not a sham transaction. The concurrent findings of the courts below about the Trust being not a fictitious and sham transaction and about the same having been duly acted upon is a pure finding of fact which is based upon consideration of the relevant evidence adduced in the case, and as such, this finding cannot be challenged in the present appeal. I may add that because of this petition, no submissions were made before us by learned counsel for the respondent no. 1 so far as the finding of the courts below on this point is concerned. His contention, however, was that the Trust did not include the whole of the Ganga Mahal and, as such, the validity of the sale as held in the execution case could not be challenged with respect to the portion which was not included in the Trust, The original Deed of Trust, which was executed by the Rani (defendant no. 2) on the 20th January, 1941 (Vide Ext. 4) and to which her husband Raja Bahadur also was a party, shows that the aforesaid Trust was created by the Rani with respect to a very large number of properties including the Ganga Mahal, but the whole of the Ganga Mahal was not included in this deed, as would appear from the following description as given in Schedule A/4 of the Deed of Trust:
Northern and western portions of Ganga Mahal excluding Ranibas and southern portion of the building.
It is thus manifest that under the original Deed of Trust, the portion of Ganga Mahal known as Ranibas as well as the southern portion was excluded from the Trust. It transpires, however, that shortly after the execution of this Deed of Trust, a Partition Suit no. 23 of 1941 was instituted on 3.5.1941 by the sons of the Rani as against the Raja Bahadur as well as the Rani in the Court of the Subordinate Judge, 3rd, Gaya, This suit ended in a compromise and was decreed on 21st March, 1942 in terms of the compromise. The terms of the compromise as embodied in the decree (Ext. 11) show that the suit related to various properties and in the present suit we are not concerned with any of the properties except the Ganga Mahal and the Deed of Trust dated 20th January, 1941, whereby a Trust was created by the Rani with respect to various properties including the Ganga Mahal. It transpires that by this compromise the aforesaid Deed of Trust of which the terms, as shown by the compromise, had been amended by a subsequent document executed on 12.1.1942, was declared to be valid and binding on the parties and the compromise decree further provided as follows:
That the Managery Kothi house belonging to Tekari Raj shall belong absolutely to defendant no. 2 while the Ganga Mahal and Mahal Sarain House shall be the property of General Trust Tekari Raj with a right of residence to defendant no. 2 on such portion of the houses which will suit her convenience (Vide paragraph nil of Ext. 11).
It is manifest from these terms that although originally the portion known as Ranibas and the southern portion were not included as subject-matter of the Trust by virtue of the deed which was executed by the Rani in January, 1941, the entire Ganga Mahal was made subject-matter of the Trust under the terms of this compromise decree and the only right that was reserved for the Rani in the Ganga Mahal was a mere right of residence in such portion of the property as would suit her own convenience. The Rani (defendant no. 2) to whom the entire Ganga Mahal belonged originally according to the admitted case of the parties, being a party to this compromise decree, there cannot be the least doubt that those portions of the Ganga Mahal which had been excluded from the Trust under the original deed were also included therein by virtue of this decree and the Rani was left with no other interest therein except the mere right of residence in a portion of the Ganga Mahal. It was however, contended on behalf of the respondent no. 1 that the aforesaid decree could not operate to create any trust with respect to those portions of the Ganga Mahal, which had not been included in the original Deed of Trust as this compromise decree had not been registered. The contention that the decree required to be registered is based upon two grounds, namely, that the Ganga Mahal did not form the subject-matter of dispute in the aforesaid partition suit and, as such the decree had to be registered in accordance with the provisions of Section 17(2)(vi) of the Registration Act and that irrespective of the provisions of the Registration Act, the decree required registration u/s 5 of the Indian Trusts Act in order to constitute a valid Trust with respect to those portions of Ganga Mahal which had not been included in the previous Deed of Trust. As regards the first contention, it appears that there is no evidence whatsoever to show that the Ganga Mahal was not included among the properties forming the subject-matter of the aforesaid partition suit. The plaint of that suit has not been produced on behalf of defendant-respondent no. 1 and the only document with respect to the suit, which is on the record of this case is the compromise decree (Ext. 11). The decree shows that the suit related to various properties which were described in Schedules A to C of the plaint and the contents of Paragraphs K to N (1) of the terms of the compromise give an indication that the Ganga Mahal was one of the properties included in Schedules B and C of the plaint. In view of these facts, the contention that the decree required registration in view of the provisions of Clause (vi) of Subsection (2) of Section 17 under which a decree made on compromise has to be registered, if it comprises immovable property other than that which is the subject-matter of the suit, is quite Untenable.
7. Coming now to the contention about the decree being required to be registered in view of the provisions of Section 5 of the Indian Trusts Act, it appears that this Section provides as follows:--
No Trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
X X X
8. It is manifest from the provisions of Sub-section (2) of Section 17 of the Indian Registration Act that the documents referred to in this Subjection do not require registration in spite of the provisions contained in Clauses (b) and (c) of Sub-section (1) of Section 17. Hence, a decree based on compromise does not require registration in spite of the provisions of Clauses (b) and (c) of Sub-section (1), if it does not comprise any immovable property other than that which is the subject matter of the suit. The exclusion of such decree from the purview of Clauses (b) and (c) of Subsection (1), however, does not, in any way, affect the provisions contained in Section 5 of the Indian Trusts Act. It follows, therefore, that if a document is , required to be registered u/s 5 of the Trusts Act, such document will have no validity whatsoever so far as creation of a trust is concerned unless duly registered, even if it comes within the category of any of the documents described in different clauses of Sub-section (2) of Section 17 as this Sub-section excludes such documents from the operation of Clauses (b) and (c) only of Sub-section (1) and not any other provisions, Reference may be made in this connection to the decision of the Privy Council in (1)
It is true that Clause (2) of Section 17......distinctly provides that nothing in Clause (b) (and it is only under Clause (b) that the document might require registration) applies to any composition deed; but this does not mean that if a document requires registration under any other enactment, the exemption contained in Clause (2) would prevail against that other enactment. What the Registration Act provides is that a composition deed so far as it purports or operates create, declare, assign, limit or extinguish........any right, title or interest of the value of Rs. 100 and upwards to or in immovable property will not require registration; but it does not say that any composition deed if it purports to do or operates to do anything else will not require registration either.
9. There cannot thus be any doubt that in view of the provisions of Section 5 of the Trusts Act, the compromise decree in the aforesaid suit was required to be registered in order to create a valid trust with respect to those portions of Ganga Mahal which were not included in the Deed of Trust executed by the Rani in the year 1941. It must, however, be pointed out that in the present case, no plea was taken by the defendant-respondent no. 1 either in her written statement or during the hearing of the suit in the trial court or even in the lower appellate court about the decree in the aforesaid suit having not been registered and that inconsequence of such non-registration, no valid trust was created with respect to the portions of Ganga Mahal not included in the previous Deed of Trust. It is manifest that the question as to whether the decree in question was registered or not is a pure question of fact and, as such, the contention of the respondent no. 1 that no valid Trust was created with respect to the, portion of the Ganga Mahal not included in the previous Deed of Trust by the compromise decree is not a pure question of law, but is actually a question of law which is dependent on the determination of the aforesaid question of fact. That being the position, it is evidently not open to this respondent to contend at the present stage that the decree in question was not registered and, as such, there was no valid trust with respect to some portions of Ganga Mahal, There cannot be any doubt that the plaintiff would be seriously prejudiced, if such a plea as to the invalidity of the Trust with respect to a portion of the Ganga Mahal on the grounds that the decree was not registered be allowed to be urged by the defendant at the present stage when this question was not raised in the courts below and the plaintiff had no opportunity of showing that the decree was registered. Reference may be made in this connection to the case of (2)
10. In view of the findings above it follows that the court below has rightly held that the entire Ganga Mahal formed a part of the Trust properties appertaining to the General Trust Tekari Raj and, as such sale thereof in execution of the decree as against the Rani, that is, defendant no. 2, and her sons was of no effect whatsoever as the property belonged to the Trust and rot to these judgment-debtors. It follows, therefore, that the sale is altogether null and void as the judgment-debtors bad no saleable interest in the property whatsoever.
11. The validity of the sale of Ganga Mahal has further been challenged on the ground that at the time of attachment and sale in the execution case, this property was in possession of the Receiver appointed in Trust Administration Suit no. 12 of 1946 and the leave of the Court appointing the Receiver had not been obtained before the attachment and sale. As would appear from certified copies of different portions of the order-sheet relating to Trust Administration Suit no. 12 of 1946, which has been marked as exhibits in this case, the suit was instituted in the year 1946 by some of the sons of Raja Bahadur against the Raja Bahadur as well as the Rani (defendant no. 2) and others and an order was passed in this suit on 25.4.1953 that it was necessary to appoint a Receiver with respect to the suit properties and an adjournment was made for selection of a proper person for such appointment (Vide Ext. 10/b). It transpires from the subsequent order dated 12.12.1953 (Ext. C/8) that the actual appointment was delayed as one of the parties went up in appeal against the aforesaid order dated 25.4.1953 and after that appeal was rejected by the High Court, the objection to the appointment of Receiver preferred by another party to the suit was rejected on 12.12.1953 and an enquiry was directed to be made from Shri Sheopujan Rai, Retired District Judge, as to whether he was agreeable to act as Receiver on the terms specified therein. Thereafter an order was passed on 21.12.1953 (Vide Ext. 7/B) appointing Shri Sheopujan Rai as Receiver after Shri Sheopujan Rai had filed a petition agreeing to his appointment as Receiver and he was directed to take immediate charge of the properties. Subsequently, on account of the resignation of Shri Sheopujan Rai, Shri Brijkishore Prasad, Advocate, was appointed a Receiver in this suit as per order passed on 3.5.1954 (Vide Ext. C/9). As shown by the order-sheet (Ext. C), although Execution Case no. 456 of 1953 was filed on 18.8.1953, that is, prior to the appointment of Shri Sheopujan Rai as Receiver, the order for issue of the writ of attachment was passed on 28.1.1954 fixing 22.2.1954 for return and the order dated 22.2.1954 shows that attachment had been served. The sale in this case subsequently took place on 7.6.1954. It is thus manifest that the attachment in the execution case took place more than a month after appointment of Shri Sheopujan Rai as Receiver while the sale took place much later, namely, more than a month after the appointment of Shri Brijkishore Prasad as Receiver in place of Shri Sheopujan Rai. The fact that the aforesaid Trust Administration Suit related to the General Trust Tekari Raj is not disputed and the concurrent finding of the courts below is that the Receiver appointed in the aforesaid suit was in possession of the Ganga Mahal at the time when the aforesaid attachment and sale took place. It transpires that the lower appellate court has come to its finding on this point after fully discussing the relevant oral and documentary evidence including the evidence of Shri Sheopujan Rai, who was examined as one of the witnesses, and this being a pure finding of fact cannot be assailed in the present appeal. The position that follows is that although the Receiver appointed by the Court of the Additional District judge, Patna, in the aforesaid Trust Administration Suit was in possession of the Ganga Mahal, the attachment and sale in the aforesaid execution case of the Court of Munsif Ist. Gaya, had taken place without any leave having been obtained by the decree holder, that is, defendant-respondent no. 1 from the court which appointed the Receiver. I may add that the fact that no such leave had been obtained is not disputed. It was held as early as 1892 in the case of (3) J. Kahn V. Ali Mohammad Haji Umer (I.L.R. 16 Bom, 577) that attachment of a fund, which was in the hands of the Receiver appointed by the court is an interference with the court''s possession through its officer, namely, the Receiver and may not, therefore, be made without the court''s leave having first been obtained. Reference may also be made here to the decision of the Supreme Court in the case of (4)
12. The only other point that remains for consideration is whether the present suit is barred under the provisions of Order 21 Rule 92 of the Code of Civil Procedure, which runs as follows:--
(1) Where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the court shall subject to the provision of Rule 58(2) make an Order confirming the sale, and thereupon the sale shall become absolute.
(2) Where such application is made and allowed, and 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.
(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.
As already mentioned, the sale in Execution Case no. 456 of 1953 was held on 7.6.1954, but thereafter on 6.7.1954 the Rani (defendant no. 2.) filed an application in the executing court, which was registered as Miscellaneous Case no. 207 of 1954. This miscellaneous case was dismissed for default on 6.11.1954 and on the same day an order was passed confirming the sale, which was held on 7.6.1954 (Vide order-sheet Ext. C). Thereafter, the execution case was dismissed on full satisfaction on 16.11.1954. It transpires that on the same day, that is, 16.11.1954, Shri Brijkishore Prasad, the then Receiver, filed an application (Ext. B/3) which was registered as Miscellaneous Case no. 364 of 1954. A prayer was made in this application for setting aside the aforesaid sale on the ground that the Receiver and his predecessor-in-office had not been impleaded in the execution case and none of the processes therein had been served upon them and the property had been sold for a nominal sum after suppression of the processes. This application was dismissed on 3.12.1954 as being barred by limitation (Vide Order-sheet Ext. C). The question arises as to whether in view of the dismissal of the aforesaid petition filed by the Receiver, the present suit is barred under the provisions of Sub-rule (3) of Rule 92 of Order 21, already quoted above. It is manifest from the provisions of the aforesaid rule that the bar under Sub-rule (3) is applicable only in case an application is filed in accordance with the provisions of Rule 89, Rule 90 or Rule 91 and the same is disallowed under Sub-rule (1) or allowed under Sub-rule (2). Rule 91 relates to an application by a purchaser at a court sale (or setting aside the sale on the ground that the judgment-debtor had no saleable interest, while Rule 89 relates to application for setting aside sale on making certain deposits, as mentioned in the rule. It is manifest, therefore, that the application filed by the Receiver in the execution case was neither under Rule 89 nor Rule 91. Rule 90 provides for application for setting aside sale by the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale on the ground of a material irregularity or fraud in publishing or conducting the sale. In the present case, one of the grounds on which the sale has been challenged is that the judgment debtors had no interest in the property as it belonged to the Trust and, as such, the sale was quite void and inoperative. It is manifest that if a person has a title paramount to the judgment-debtor his interest in the property cannot be affected by any sale in execution of a decree against the judgment-debtor. As such the expression "whose interests are affected by the sale" as used in Order 21 Rule 90, Code of Civil Procedure, does not cover such a person. It follows, therefore, that no application under Order 21, Rule 90 could be filed by the Receiver on the basis of the claim that the property was a Trust property and, was as such, not saleable in execution of a decree against the Rani and her sons. It is thus manifest that neither Rule 89 nor Rule 91 has any bearing in the present suit and Rule 90 also has no bearing, so far as the claim in the present suit is based upon the allegation that the sale was void and inoperative as the Ganga Mahal was a Trust property appertaining to the General Trust Tekari Raj Hence although Misc. Case no. 364 of 1954 instituted by the Receiver was dismissed as barred by limitation, the bar under Sub-rule (3) of Rule 92 does not affect the maintainability of the present suit, so far as it is based on the allegation that the sale was void and inoperative as the Ganga Mahal was a Trust property. It is accordingly held that the suit is maintainable and not barred by the provisions of Sub-rule (3) of Order 21, Rule 92 and the finding of the lower appellate court about the suit being barred under the above provision is not correct.
In view of the findings above the appellant is entitled to the reliefs as claimed by him in the suit and the present appeal is accordingly allowed, the judgment and decree of the lower appellate court, are hereby set aside and the decree as passed by the trial court is restored subject to the following modification. As it appears; from the certified copies of order-sheet of the Trust Administration Suit that the Receiver had knowledge of the execution proceedings from before the sale held therein and no proper steps were taken for preventing the sale, it is directed that the parties shall bear their own costs of this Court as well as the courts below.
Tarkeshwar Nath, J.
I agree.
