Wanchoo, J. - (1.) THIS is a revision by Alladin against the order of the District Judge of Bhilwara in an execution matter.
(2.) THE facts leading to this revision are these: The opposite parties Karim Bux and others obtained a decree against Alladin, judgment -debtor applicant. That decree was put in execution, and the property of Alladin, consisting of certain houses, was sold. Chhagan Lal was the auction -purchaser of this property. The sale took place on 23 -4 -1951. On 14 -5 -1951, the applicant applied to the Civil Judge, under O. 21, R. 90, for setting aside the sale on the ground of fraud or material irregularity in publishing and conducting it. He did not show the auction -purchaser Chhaganlal as a party in the heading to this application. An objection was raised on behalf of the decree -holders on this ground, and thereupon Chhaganlal was added on 26 -5 -1951. Then another objection was raised to the effect that as Chhaganlal had been made party more than 30 days after the date of sale, the application under O. 21, R. 90 was barred by limitation. This plea prevailed with the executing Court which dismissed the application. There was an appeal to the District Judge who also upheld the contention, and dismissed the appeal. Hence this revision. The only point, which is urged on behalf of the applicant, is that the executing Court was wrong in holding that the application was barred by limitation because the auction -purchaser had not been made a party till more than 30 days had gone by after the sale, and that by this wrong decision the executing Court refused to exercise the jurisdiction vested in it. The argument is that it is not necessary in an application under O. 21, R. 90 to make anybody a party, and that it is the duty of the Court to give notice to the parties affected under the proviso to O. 21, R. 92(2), and all that the law requires is that the application under O. 21, R. 30 should be made within 30 days. This matter has been the subject of consideration by the various High Courts, and the consensus of opinion now is that it is not necessary to mention the parties in the heading of the application under O. 21 R. 90, and that if any party is left out, it is the duty of the Court to give notice under the proviso to O. 21, R. 92(2), and the application will not be barred by time simply because some party, who is affected, is left out by mistake or otherwise. The reason for this, to our mind, appears to be that the parties affected by an application under O. 21, R. 90 are already known to the Court. If the application is by the judgment -debtor, the parties affected obviously are the decree -holder and the auction -purchaser. On the other hand, if the application is by the decree -holder, the parties affected are the judgment -debtor and the auction -purchaser. Similarly if the applicant is the auction -purchaser, the parties affected are the judgment -debtor and the decree -holder. All these parties are known to the Court when an application under O. 21, R. 90 is made by any of them. It would of course be advantageous if an application under O. 21, R. 90 mentions in the heading all the parties affected; but if it does not, it cannot, in our opinion, be said that the application is barred by Art. 166, Limitation Act provided it is filed within 30 days of the date of sale.
(3.) IN - 'Ghazanfar Husain v. Ram Ratan',, AIR 1914 Oudh 307 (A), it was held that there was no absolute necessity for a judgment -debtor filing an application under O. 21, R. 90 to set out in the preamble of the application any formal array of parties, and therefore such an application should not be thrown out simply because an auction -purchaser was not shown therein as a party.;