M.L. Verma, J. - (1.) THE circumstances giving rise to this appeal may be briefly stated as under
(2.) M /s. Empire Store, New Delhi (hereinafter called Respondent No. 1) took out execution of a money decree held by them against Mrs. Stanley E. Skinner (Respondent No. 2) and in execution of that decree 1/3rd share in the land belonging to Mrs. Stanley S. Skinner was sold on February 10, 1971, by Tehsildar, Hansi, under the necessary warrants issued by the Subordinate Judge 1st Class, Hissar. Mrs. Margaret A. Skinner (hereinafter called the Appellant) also held a money decree against Mrs. Stanley E. Skinner, who is her mother. She made application on January 21, 1971, in her execution application for permission to bid at the auction. The said permission was granted to her on February 8, 1971. Thereafter, she moved application on August 31, 1971, for retable distribution of the sale proceeds of the land. Later on, she moved application under Order XXI, Rule 90, Code of Civil Procedure, for setting aside the sale of 1/3rd of the land belonging to Respondent No. 2, held by the Tehsildar on February 10, 1971. The main grounds pleaded by her in the said application were as under: (1) That the proclamation and the warrant of sale had not been properly drawn up and necessary details were not. incorporated therein, and the value of the land stated therein was inadequate. (2) That the sold land had been converted into plots but the said fact was not stated in the proclamation or warrant of sale. (3) That the proclamation was neither affixed at the Court house or at the spot nor at the Court of the Collector. (4) That the Appellant offered a bid but it was not accepted' by the Tehsildar for the reason that he declined to accept a cheque intended to be presented by her in lieu of 1/4th of the auction money. (5) That the attached land had been sold for inadequate price. (6) That since the decretal amount due to Respondent No. 1 was not more than Rs. 15,000, a part of the land could have -been sold. (7) That the Appellant's bid being a co -sharer in the land should' have been preferred. So, according to the Appellant, there had been material irregularity in publishing and conducting the sale and, as such, the same was liable to be set aside. The' aforesaid objections raised by the Appellant were resisted by Respondent No. 1 as well as by Shiv Dayal (Respondent No. 3), who had purchased the land at the auction. They controverted the material allegations made by the Appellant and pleaded, inter alia, that the Appellant had no locus standi to maintain the objections. Hence, the following issues were settled: (1) Whether there has been a material irregularity in publishing or conducting the sale as alleged in para No. 3 of the objection petition ? (2) Whether all the objections taken up in para No. 3 of the objection petition can be taken up in the present objection petition ? (3) Whether the objector has locus standi to file the present objection petition ? (4) Whether the objector has sustained substantial injury by reason of the alleged irregularity ? (5) Relief. The executing Court answered issue No. 3 in the affirmative and issue Nos. 1, 2 and 4 in the negative and dismissed the objections preferred by the Appellant. Aggrieved by the said order of the executing Court, the Appellant has come to this Court in appeal.
(3.) THE two preliminary objections raised by Shri Roop Chand Chaudhry, the learned Counsel for Shiv Dayal auction -purchaser, are, firstly, that this appeal cannot be treated as execution first appeal, and, secondly, that the Appellant was not competent to file objections and, as such, she could not maintain this appeal. Since the dispute respecting the setting aside of the sale was between the rival decree holder , who is the Appellant and the auction -purchaser, the impugned order does not fall under Section 47, Code of Civil Procedure, for the reason that the Appellant, who is a rival decree holder , was not and cannot be considered as a party to the suit in which the decree, in execution of which the land had been sold, had been passed. Therefore, I am inclined to agree with Shri Roop Chand Chaudhry that the appeal cannot be treated as execution first appeal, and the first objection raised by him seems to be correct. However, the impugned order is itself appealable under Clause (j) of Rule 1 of Order XLIII, Code of Civil Procedure, and, therefore, the appeal be and is treated as F.A.O. (first appeal from order). Rule 90 of Order XXI, Code of Civil Procedure, specifically includes person entitled to share in a rateable distribution of assets, to whom right to apply to set aside the sale on the ground of material irregularity or fraud has been given. The expression "person entitled to rateable distribution" means a person on whom the right is conferred by Section 73, Code of Civil Procedure. The said section confers the right to share proceeds of execution sale to all the decree holders . The only condition is that the rival decree holders must have taken out execution, of the decree before the sale proceeds , i.e., assets, have been received by the Court executing the decree. The Appellant admittedly held money decree against Respondent No. 2 and she had taken out execution. She also made application for permission to bid at the auction on January 21, 1971, i.e. about 20 days before the sale which took place on February 10, 1971. Therefore, in my opinion, she was entitled to share in rateable distribution of the assets. As such, she was" competent to file objections for setting aside the sale under Rule 90, Order XXI, Code of Civil Procedure and in that view of the matter, she is competent to maintain this appeal. Therefore, I find no force in the second objection raised by Shri Roop Chand Chaudhry and overrule the same.;