- (1.) IN this rule, an important question of law arises, namely whether the sale under the partition suit and/or mortgage suit is a sale under Or. 21 and whether in such a case the sale can be avoided under Or. 21. R. 89 of the Code of Civil Procedure. The opposite parties Nos. 1 and 2 filed a suit, being Money Suit No. 32 of 1951, against the petitioner and four other defendants for realisation of mortgage dues by partition and sale of the mortgaged property being 1/3rd share of the defendant no. 1, namely, sachindra Nath Das, in the suit property which was subsequently purchased by the petitioner and alternatively for realisation of the mortgage dues out of the 1/3rd share of the sale proceeds after auction sale of the entire suit property. The plaintiff's case is that the defendant no. 1 and the petitioner have got 1/3rd share each and the remaining defendants nos. 3 to 5 jointly have got 1/3rd share in suit property being the three storied building on a land of about 3 kottahs 1 chittack in Chandernagore; that while in possession of the suit property the defendant no. 1 took loan of Rs. 1250/- each by executing two Notarial Mortgage Bonds both dated 18th February, 1949 in respect of undivided 1/3rd share in the suit property and the defendant no 1 there after sold his said undivided 1/3rd share to the petitioner by a registered deed of sale dated 17th January, 1951 subject to the aforesaid mortgage and the mortgage dues amounting to Rs. 1. 459-12 annas each was neither paid by the defendant no. 1 nor by the petitioner inspite of repeated demand, as a result of which the said suit was filed. The petitioner stated that the predecessor of the opposite parties nos. 3 to 6 became a co-plaintiff in the said suit for realisation of his decretal dues against the defendants nos. 3 and 5. In the plaint it is stated that the suit property is not capable of being conveniently partitioned amongst the co-sharers and as such it should be put to sale in its entirety for recovery of the dues of the said three plaintiffs. Ultimately the suit was decreed in a preliminary form on contest. In the said preliminary decree it was provided as follows :- "it is ordered and decreed (that a preliminary decree is passed on contest against the defendant no. 2 barendra Nath Das and exparte against the defendants Nos. 1, S, 4 and 5 declaring that rupees 1iwo hundred nine and annas twelve as interest are due to each of the first two plaintiffs Pannarani Das said narendra Nath Das from defendant No. 2 Barendra Nath Das and that rupees two thousand six hundred eleven and annas eight and pies six and rupees two thousand three hundred seventy seven and annas fourteen four pies are due to plaintiff Nos. 3 Sashibhusan Das from the defendants Nos. 3 and 5 dulal Chandra Das and Banku behari Das respectively and directing that the said three defendants do pay into the court the said sunns by 22. 8. 53 together with costs of this suit and that in default of such payment the plaintiffs shall be entitled to apply for a final decree directing sale of the entire joint property and division of the sale proceeds among the creditors and the owner-co-sharers of the property according to law". The said preliminary decree was made final on 29th December, 1953 in the same terms excepting some variation of interest.
(2.) THE said preliminary decree was confirmed in appeal substantially on 29th December, 1953 with certain variation as regards the interests but we are not concerned with that part of the present case at the present moment. The whole point centres round whether or. 21 R. 89 is applicable in the matter of sale as directed to be made under section 2 of the Partition Act.
(3.) MR. Ghosh on behalf of the appellant contended that Or. 21 is applicable. In fact, it is stated, that the decree-holder applied under Or. 21 R. 66 for the issue of a sale proclamation and thereafter all the steps for bringing the property for sale were taken under Or. 21 and it is also argued that after the sale is held, Or. 21 R. 89 must necessarily apply. Mr. Ghosh relied upon the cases reported in A. I. R. 1923 Cal. , 582, Nirod v. Amulya A. I. R. 1963 Punjab, 531 Roshan Lal v. Govind Raj and 52 C. W. N. 739 Rani Bala v. Hirendra chandra in support of his contentions.;