Bibi Mehdatunnissa Vs Sheo Devi Singh and Others

Adami, J.@mdashThe appellant is one of the judgment-debtors under a mortgage decree. When that decree came up for execution she applied that she should be allowed to pay a certain sum to the decree-holder and that in consideration of this payment her property should not be sold until the properties of the other judgment-debtors had been put up to sale. Notices ware issued under Rule 66 and the executing Court considered the matter of the valuation of the various properties and fixed the values after hearing both parties. The properties of the other judgment-debtors were put up to sale and sold before those of the appellant according to the direction of the Court. After the sale the appellant came before the executing Court and made an application under Order 21, Rule 90 for the setting aside of the sales of the properties of the other judgment-debtors on the ground that there had been irregularity and fraud and consequent inadequacy of price. The point which the lower Court considered was whether the appellant had any locus standi having in view the fact that it was not her property that had been sold. It was mentioned in the order now under appeal that there had been a contest in respect to the valuation and that the appellant had little ground for stating that the valuation had been too low. But the Court, decided the case on the main point, namely, whether the appellant could make the application and finding that she had no locus standi, rejected the application. The Subordinate Judge dealt with the interpretation of the words in Rule 90 "any person whose interests are affected by the sale" and he relied on the case of Kartick Chandra Chatterji Vs. Nagendra Nath Roy and Others, after remarking that under the rulings of other High Courts the appellant would presumably have an interest which was affected by the sale.

2. The learned Subordinate Judge has misapplied the ruling I have mentioned above, for it does not apply in this case. There are decisions of this Court which are in agreement with the decisions of other Courts that "persons whose interests are affected by the sale" include persons with pecuniary or other interest. The case of Kartick Chandra Chatterji Vs. Nagendra Nath Roy and Others, dealt with the point whether an auction-purchaser was a person whose interest was affected by the sale, and the learned Judges of this Court Came to the finding that the auction purchaser had no interest before the sale and therefore he could not be said to be a person whose interest was affected by the sale. In the present case however it is quite clear that the appellant''s interest was affected by the sale. If the properties of the other judgment-debtors were sold at an inadequate price then of course the appellant''s properties were threatened. If the prices had been adequate she could have had no complaint. The very inadequacy of price would mean that her own properties would have to be sold and therefore she had an interest which was affected by the sale.

3. The order of the learned Subordinate Judge must be set aside and the application under Order 21, Rule 90 must be considered by him on the merits according to law.

4. Mr. Lachmi Narayan Singh on behalf of one of the auction-purchasers states that his client has no objection be the sale of the property which he has purchased being set aside. He would be satisfied if money which he has paid is returned to him with interest and also the revenue which he has already paid. This may be noted by the executing Court.

5. The appellant will get her costs in this Court against the decree-holder respondent: hearing fee four gold mohurs.

6. Let the hearing of the application in the lower Court be expedited.

Fazl Ali.

7. I agree.