HARDWARI LAL Vs. MUHAMMAD SALAMAT ULLAH KHAN

JUDGEMENT

(1.) THIS is an appeal against an order setting aside a sale under the provisions of Order XXI, Rule 90, of the Code of Civil Procedure. The first point taken is that the application under that rule was made by one Salamat Ullah Khan, who was neither the decree-holder nor the judgment-debtor, nor a person otherwise entitled to make any such application. We think this contention must prevail. The decree was one passed against Amanatullah Khan a son of Salamat Ullah Khan aforesaid. It was a mortgage-decree. A decree absolute was obtained on the 17th of January 1913 and the sale actually took place on the 20th of March 1915. In the meantime Salamat Ullah Khan had filed a suit, on the 9th of March 1915, asking for a declaration that he was himself the real owner of the property covered by the mortgage and ordered to be sold in execution of the same. THIS suit is still pending. The question is, whether under these circumstances, Salamat Ullah is a person whose interests are affected by the sale, within the meaning of Order XXI, Rule 90, aforesaid. It is of little use to refer to reported cases which turn on the wording of Section 311 of the former Code of Civil Procedure (Act XIV of 1882). There has been a substantial and intentional alteration in the law effected by the passing of the present Code. Nor is it of much use to refer to cases such as that of Abdul Aziz v. Tafajaddin 23 Ind. Cas. 839 : 19 C.W.N. 326, in which the learned Judge has remarked that the expression whose interests are affected by the sale" has a wider import and a wider scope than the corresponding expression used in Section 311 of Act XlVof 1882. For certain purposes the phrase used in the present Code may be a wider one, but we have to apply the words to the facts immediately before us. It seems to us that it would be a dangerous proposition to lay down that the interests of Salamat Ullah Khan are affected by the sale held on the 20th of March 1915, while his declaratory suit was actually pending. To" say that his interests are affected by that sale might be to pronounce an opinion as to the possibility of the success of his declaratory suit. If his property has been sold in execution of a decree obtained against his son, and he is not estopped by the provisions of Section 41 of the Transfer of Property Act (IV of 1882) from setting uphis true title, then the sale is a nullity as against him and cannot affect his interests. If, on the other hand, he has no real interest in the property in suit, he should obviously not be permitted to maintain the application under Order XXI, Rule 90. We, therefore, accept this appeal, set aside the order of the Court below allowing the application of Salamat Ul-lah Khan and direct the record to be returned to that Court in order that it may proceed to pass all necessary orders confirming the sale and to dispose of the matter in accordance with law. The appellant will get his costs of this appeal, including fees on the higher scale.