VENKATESHA KAMTHI Vs. VITLA BHAKTA

JUDGEMENT

(1.) THE only point for consideration here is whether a decree-holder who had before decree attached the judgment-debtor's property or some of it comes within Order 21, Rule 90, Civil Procedure Code. It is conceded that the decree-holder was not the decree-holder in the suit in which the property was brought to sale nor was he a person entitled to share in a rateable distribution of the assets because he had not put in an execution application. But the question is whether he is a person whose interests are affected by the sale. If his interests are affected by the sale, he may apply to the Court to set aside the sale. That is what the 1st respondent did in this case. He got an attachment before judgment and subsequently got a decree in his favour. THE passing of the decree confirmed his attachment. At the time when he made the application under Order 21, Rule 90, Civil Procedure Code, the property had been attached and he had a decree in his favour. THE property was brought to sale by a decree-holder in another suit and sold and then the application was made to set aside the sale. Both the District Munsif and the Lower Appellate Court held that the 1 respondent came within Order 21, Rule 90, Civil Procedure Code, and on the merits set aside the sale for the reasons given in their judgments. It is conceded here that a person "whose interests are affected by the sale" can be a person whose pecuniary interests are affected by the sale and that those words do not mean proprietary interests only. That having been conceded, what we have to consider here is whether a person who obtains an attachment before judgment and who afterwards gets a decree is a person who has a pecuniary interest. In my opinion, he clearly is. It has been held in a number of cases that a decree-holder who attaches in execution, is a person who has a pecuniary interest and is a person who is within Order 21, Rule 90, Civil Procedure Code. I cannot myself see that a person who has got an attachment before judgment and who subsequently gets a decree is in any different position from a person who has attached in execution. If there is any difference at all,- it lies in the fact that the person who has attached the property in execution has taken a step in execution which the other person has not taken; but in both cases, the property is already under attachment for the purpose of satisfying the decree. I am clearly of the opinion that such a person as that is a person whose interests are affected by the sale. That being so, this petition is dismissed with costs. Bardswell, J.

(2.) I agree.