Authored By : B.K. Mullick, Jwala Prasad

B.K. Mullick, J.

1. A preliminary point is taken by the learned Vakil for the opposite party that no question of jurisdiction is involved; that the Court had a right to decide whether or not a judgment-debtor who has sold his property subsequently to the sale is entitled to make a deposit under Order XXI, rule 89, and if the Court has made an error of law in deciding the point, that error does not constitute any illegality or material irregularity in the exercise of jurisdiction. In my opinion the principles of Malkarjan v. Narhari 25 B. 337 (P.C.) : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 27 I.A. 216 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 do not apply. Here the Court could only adjudicate upon the application, if it was presented by a person fulfilling the character required by rule 89. The Court's decision upon the point whether the applicant has the necessary legal character is clearly a question involving jurisdiction. An erroneous decision on a question of law or fact, after jurisdiction has been once legally assumed, would not be a ground for interference under section 115 of the Code of Civil Procedure, but if the decision is the very basis and foundation of jurisdiction in its limited sense as distinguished from powers, it at once comes within the purview of the section. The judgment of their Lordships of the Privy Council in Balkrishna Udayar v. Vasudeva Aiyar 40 Ind. Cas. 650 : 22 C.W.N. 50 : 15 A.L.J. 645 : 2 P.L.W. 101 : 33 M.L.J. 69 : 26 C.L.J. 148 : 19 Bom. L.R. 715 : (1917) M.W.N. 62 (sic) : 40 M. 793 : 6 L.W. 501 : 11 Bur. L.T. 48 : 44 I.A. 261 (P.C.) is, in my opinion, authority for this view.

2. The next question is, whether the decision of the Subordinate Judge should be restored.

3. Now Order XXI, rule 89, amends section 310A of the former Civil Procedure Code, by which deposits could be made by any person whose immoveable property had been sold. The amending words "any person either owning such property or holding an interest therein by virtue of a title acquired before such sale" have, by letting in persons who are not parties to the execution proceedings, clearly widened the operation of the rule.

4. Bearing this in mind as the object of the amendment, how has it affected the judgment-debtor

5. The Statute itself does not set at rest the conflict of decisions under the older Code, in illustration of which it is only necessary to state that while Jenkins, C.J., in Maganlal v. Doshi Mulji 25 B. 631 : 3 Bom. L.R. 255 held that section 310A enables a judgment-debtor to make a deposit who had fold the property after the sale, their Lordships of the Allahabad and Madras Courts in Ishar Das v. Asaf Ali 13 Ind. Cas. 134 : 34 A 186 : 9 A.L.J. 19 and in Subbarayadu v. Lakshminara Samma 22 Ind. Cas. 193 : 38 M. 775 : 15 M.L.T. 98 : (1914) M.W.N. 147 : 1 L.W. 59 took the view that unless the applicant is, at the time of the application, an owner, or holds an interest in the property, he cannot get the benefit of the rule These authorities have been carefully considered by a Division Bench of the Bombay High Court in Pandurang Laxman Uphade v. Govinda Dada Uphade 37 Ind. Cas 211 : 40 B. 557 : 18 Bom. L.R. 571, and I venture to think with great respect that the object and scope of the rule have been correctly stated in that judgment.

6. It seems to me of the auction sale. As has been observed by their Lordships of the Privy Council, the property passes from the judgment debtor to the auction-purchaser at the moment of the sale irrespective of the time of confirmation [Bhawani Kumar v. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 8(sic): 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 944 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P.C.)]. If that is so, then the judgment-debtor retains no transferable interest after the sale. He may have a right to make a deposit, but that is not a right which can be transferred. For the purpose of making an application under rule 89, he can be neither an owner nor a person holding an interest in the property at the time of the application. If, therefore, rule 89 is to be limited to a person so qualified at the time of the application, then the judgment debtor, who certainly is one of the persons for whose benefit the rule was enacted, is incompetent to apply. Therefore, I think that the qualification must refer to the moment immediately before ownership passed. I agree with their Lordships of the Bombay Court in thinking that the law intended to assist the judgment-debtor if by making a private sale subsequent to the auction-sale he could secure a better price for his property.

7. A further point was taken by the learned Vakil for the petitioner that the decree-holders had not obtained a valid title to the property, and that the judgment debtor was still the owner thereof. It is contended, first, that the judgment debtor was not holding the estate of a Hindu widow; and secondly, that the deed of release executed by her not being sufficiently stamped could not be treated as a conveyance transferring the property to Namdeo. Now these are questions which it was competent for the Subordinate Judge to decide after he had assumed jurisdiction. They are not necessary for the foundation of jurisdiction, and, therefore, whether they have been rightly or wrongly decided is immaterial for the purposes of section 115 of the Code of Civil Procedure. The result is that the learned District Judge has, in my opinion, wrongly refused to exercise jurisdiction in declining to accept a deposit from the judgment-debtor. Under section 115 of the Code of Civil Procedure we set aside his order and direct that the order of the Subordinate Judge be restored with costs throughout.

Jwala Prasad, J.

8. I agree that the Question raised in this appeal as to whether the judgment-debtor was entitled to apply under Order XXI, rule 89, of the Code is one of jurisdiction, and the decision of the Courts below upon the point is, therefore, subject to our revisional jurisdiction under section 115 of the Code. The property in dispute was sold in execution of a decree on the 4th December 1917 as belonging to the judgment debtor Dhanwanti Kuer. She disposed of the property on 22nd December 1917 and on the 2nd of January 1918 applied to have the sale set aside on her depositing in Court the necessary amount. The learned District Judge, disagreeing with the Subordinate Judge, has held that the judgment-debtor has no locus standi to make an application to set aside the sale under Order XXI, rule 89, inasmuch as she did not at the date of the application own the property in question. It is contended on her behalf that the view taken by the learned District Judge is not correct in law. The point is not free from difficulty, and, as a matter of fact has led to great divergence of opinion in the Courts that had hitherto occasion to interpret the law in the present Code. The Allahabad and the Madras High Courts have taken the view that a judgment-debtor who, after the sale, has parted with the property is not entitled to come under Order XXI, rule 89, whereas the Bombay High Court has taken a contrary view. The cases have already been referred to in the judgment of my learned brother. I have myself felt very great difficulty in making up my mind. In fact, the language in the aforesaid rule is not happily worded. After a careful consideration of the object and scope of the rule, as well as upon a true construction of it, I have come to the conclusion that the judgment-debtor is not deprived of his right to have the sale set aside under the aforesaid rule, which he undoubtedly had under the old Code. The words in the present Code "Any person either owning such property or holding an interest therein by virtue of a title acquired before such sale" have been substituted for the words in the old Code "Any person whose immovable property has been sold."

9. The property may be owned by the judgment-debtor, or it may be owned by some other person, and sold as the property of the judgment-debtor. It is with a view to allow such persons other than the judgment-debtor, as well as those who as co-sharers or as mortgagees may have held some interest in the property by virtue of a title acquired before the sale, that the aforesaid amendment was made. The object of the amendment in the present rule is, therefore, not to curtail the rights of the judgment-debtor but to widen the scope of the rule by allowing persons other than the judgment-debtor to come in. The words in the rule, therefore, if not repugnant otherwise, should be so construed as to give effect to the intention of the Legislature. It is obvious that the intention of the Legislature was not to take cognizance or notice of any event subsequent to the sale, for the rule expressly recognises only such interest in the property as may have been acquired before such sale. Any act committed by the judgment-debtor affecting the property will not, therefore, be taken notice of by the Court in an application under rule 89, and hence the judgment-debtor's disposing of his property will not deprive him of the right to come in under that rule.

10. Keeping the above remarks in view, the language in the rule, though not happily worded, will, after careful consideration, support the construction that the judgment-debtor may, in spite of his having parted with the property, claim the benefit of the rule. Leaving out the words in the rule that do not apply to the present case, it will run as follows:--

"Where immoveable property has been sold in execution of a decree any person owning such property may apply to have the sale set aside." These words carry the same import as the words in the old Code--"Any person whose immoveable property has been sold may apply to have the sale set aside." It is obvious that any person owning immoveable property at the time of its sale in execution of a decree may apply to have the sale set aside. The judgment-debtor, who has made the present application to set aside the sale under rule 89, will, therefore, clearly come under the said words. If it was intended that the owner of the property, such as the judgment-debtor owning the property at the date of the sale, should not be allowed to apply on account of his having parted with the property by sale or otherwise subsequent to the execution sale, it would have been clearly stated in the rule. In the absence of a clear restriction upon the right of a judgment debtor which he had at the time of the sale, it would be manifestly unjust to refuse the judgment-debtor the benefit of the rule. It would be beyond the scope of rule 89 to enquire into any transaction subsequent to the sale and to find out the motives for such a transaction.

11. With great respect to the learned Judges of the other High Courts, who have taken a contrary view, I am of opinion that the judgment debtor's application was properly made and that the Court had no option but to entertain it. I, therefore, agree with the order proposed by my learned brother.

12. I do not consider it necessary to give any opinion as to whether the judgment-debtor had any interest in the property after the sale and before the confirmation of the sale which he could validly transfer.