ROXBURGH, J. - (1.) THIS rule raises the question; can a cosharer who is not in any way a party to the suit or execution proceedings in which a share of a tank has been sold in execution make an application under Order 21, Rule 89, Civil P. C. The trial Court has decided that he can ; the lower appellate Court relying on an incorrect version of Rule 89 as in force in West Bengal, has decided that he cannot.
(2.) THE tank in question was part of the joint property of three brothers, one of whom is the depositor under Rule 89 and another the deceased father of the judgment debtors. The other joint properties of the brothers were partitioned, the tank remaining joint. The sale was held in execution of a money -decree. Authority on the question is curiously meagre, no case of this Court directly in point had been cited before me. It was considered in Bisheshar Kuar v. Hari Singh, 5 ALL 42: (1882 A. W. N. 146) in 1882 under the provisions of the Old Code, but in relation to Section 311 or Order 21, Rule 90 as it then stood. The cosharer there had actually made a bid at the sale and relied in his application under Order 21, Rule 90 (Section 311) on Order 21, Rule 88 (Section 310). His application was rejected on the ground that he was not 'either the decree -holder or a person whose immovable property had been sold.' The decision is not of assistance in interpreting the present Rule 89 (as introduced in 1933) ''any person, whose interest is affected by such sale,' or the similar words of Rule 90 'any person. . . . whose interests are affected by the sale.'
(3.) IN Ramchandra v. Srinivasa : AIR1928Mad899 it was held that the cosharer was a 'person holding an interest in the property sold,' as every member of an undivided family has an interest in joint family property, that is to say, not the share of each, but the whole corpus of the property. The case was one under Rule 89, Jackson J. remarking that if one brother chose to pay another brother's debts rather than see the ancestral property pass to stranger (a transaction which may easily involve the family in discredit and inconvenience) there is no objection to his doing so. The decision was not under the wider terms of Rule 89 as in force here.;