- (1.) D. P. Singh, J. Heard Sri Z. K. Hasan, learned Counsel for the petitioner and Sri Vishal Khandelwal for the contesting respondent.
(2.) THE writ petition is directed against a revisional order dated 29-9-1982 by which an objection under Section 47, CPC read with Order XXI, Rule 90 filed by the petitioner has been rejected and so also the order of the trial Court, allowing the said objection, has been set aside. The case as set out by the petitioner is that he purchased plot No. 959 vide registered sale-deed dated 20-2-1971 from one Shree Niwas son of Kadam. On the strength of the aforesaid sale-deed, his name was mutated over the land in dispute. Opposite Party No. 3 Hari Ram obtained a money decree against the transferrer of the petitioner and put the same into execution. Plot Nos. 476, 896 and 959 were attached during execution. It is also stated that in the auction of the aforesaid three plots the petitioner brought to the notice of the Court Amin that since plot No. 959 had already been sold to him vide registered sale-deed dated 20-2-1971, the said plot could not be sold in these proceedings. With respect to the other two plots, the petitioner is said to have made a bid which was not recorded in the bid sheet. It is also stated that Kali Ram, opposite party No. 2 had made his bid for all the three plots and whose bid was accepted and sold vide sale-deed dated 13-1-1981. The petitioner filed an objection on 30-1- 1981 before the execution Court under Section 47, CPC and Order XXII, Rule 90, CPC. The objection was that the entire proceeding were irregular and in fact, his bid for plot Nos. 476 and 896 were not considered or recorded in the bid sheet and the bid of Kali Ram was illegally accepted. The prayer made in the said objection was that the sale-deed may be set aside and attachment of plot No. 959 may be lifted and the bid of the petitioner for the plot Nos. 476 and 896 may be accepted. The contesting respondent, however, submitted that the objection of the petitioner under Section 47 and Order XXII, Rule 90, CPC was not maintainable. It was also brought on record that Hari Ram, the decree-holder, was none other than the father of the petitioner. It was also stated that no irregularity whatsoever was committed by the Court Amin. The executing Court vide order dated 18-11-1981 allowed the objection of the petitioner against which the contesting respondent preferred an appeal which has been allowed by the impugned order. The appellate Court held that the petitioner was not an interested person. Since he claims paramount title; objection under Section 47 or Order XXII, Rule 90 was not maintainable. Thus, this petition. The learned Counsel for the petitioner has raised three primary contentions in support of the objection. Firstly, the objection of the petitioner Under Order XXI, Rule 90 and Section 47, CPC was maintainable. Secondly, since there was material irregularity in conducting the sale, thus, the auction itself was bad. The last contention of the Counsel for the petitioner is that the finding regarding to said auction sale recorded by the trial Court has not been set aside by the appellate Court.
(3.) IN support of the first contention, the learned Counsel for the petitioner has submitted that as he was the transferee of the judgment debtor, therefore, he was its representative and an interested person. Further, it has been urged that since the suit property had already been sold prior to the passing of the decree, the auction sale so far as plot No. 959 is concerned, was void. It has also been urged that the application under Order XXI, Rule 90 is maintainable in view of the fact that his interests in the said property were affected by the sale. IN any event, it is contended that the petitioner was claiming a paramount title whose interests are affected by the sale. Thus, the appellate Court committed manifest error by holding that the application of the petitioner was not maintainable. IN support of his contention the learned Counsel for the petitioner has relied upon a decision of the Madras High Court rendered in the case of Saraswathi Ammal v. M. Reddiar, AIR 1975 Madras 147, wherein it has been held that if a person's paramount title is affected by the sale, application under Order XXI, Rule 90, CPC would be maintainable. However, Sri Khandelwal has urged that question with regard to saleability of the suit property could not be examined under Rule 90 of Order XXI. Relying upon sub-section (3) of Rule 90, the argument is that since recourse to Order XXI, Rule 58 has not been taken by the petitioner, the application under Order XXI, Rule 90 was not maintainable. He has urged that objection to the attachment could have been raised under Order XXI, Rule 58 as the decree-holder and the petitioner were both father and son. Further it has been urged on behalf of the contesting respondent that Section 47, CPC does not apply to the facts of the present case since the petitioner was neither representative of the parties nor was a party to the decree and his objection only related to saleability of the property. To appreciate the argument of the learned Counsel for the parties, it would be necessary to quote the relevant part of Order XXI, Rule 90, as applicable to State of U. P. : "90. Application to set aside sale on ground of irregularity or fraud.- (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a reliable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation - Provided that no application to set aside a sale shall be entertained.- (a) upon any ground which could have been taken by the applicant on or before the date on which the sale proclamation was drawn up; and (b) unless the applicant deposits such amount not exceeding twelve and half percent of the sum realized by the sale or furnishes such security the Court may in its discretion fix except when the Court for reasons to be recorded dispenses with the requirements of this clause. ";