[This Appeal and the Petition came on for hearing on the 16th and 27th days of August 1920, before their Lordships Sir William Ayling and Odgers, JJ.].

The facts of this case are succinctly set-forth by the District Munsif.

The application is one under O. 21, R. 8

9. The applicant is the judgment-debtor. He has paid into Court the full amount under the rule. That was on 25th April 1918 and the sale was on 5th April 19

1

8. But he had in the meanwhile sold the property to a third person. That private sale was on 9th April 19

1

8. The price fetched at the Court sale was Rs. 600, whereas the consideration for the private sale was Rs. 1,500. The money that was deposited into Court under Rule 89 came out of the private sala by the judgment debtor. These facts are indisputable and undisputed.

Both the Lower Courts have held, relying on Subbarayudu v. Lakshminarasamma , (I.L.R., 38 Mad., 775) that the judgment-debtor had no locus standi to apply under O. 21, R. 89, and have rejected his application. Against this decision the judgment-debtor appeals.

On behalf of respondent the preliminary objection is taken that no second appeal lies. So much appellant is forced to concede: but he relies on a revision petition filed by him as an alternative form of relief. To this respondent rejoins that no question of jurisdiction is involved and that we have no power of interference under Sect. 115 of the Civil Procedure Code.

We have therefore two questions for decision (1) as to the correct construction of Order 21, Rule 89, (2) as to whether any question of jurisdiction is involved: and in both we have had the benefit of a long argument in which rulings are quoted which are impossible to reconcile.

The law on both points was considered by Sir Abdur Rahim, J. in C.R.P. No. 1216 of 1918 (Since reported in Gopala krishna Naicker v. Viswanatha Aiyar , 12 L.W., 16

5. Ed.): and on his motion a Full Bench was constituted to consider them. No opinion was, however, delivered, inasmuch as the facts of that case admitted of decision on a simpler ground. The applicant there was not a vendee subsequent to Court auction sale, but a mortgagee : and, as such, clearly not entitled to apply under R. 8

9. What would be the position of a vendee from a judgment-debtor, and which of themvendee or judgment-debtorcould apply, was not considered: nor was the question of jurisdiction.

We are, however, confronted in the present case with both problems: and on both the conflict of authority is such that we feel constrained to make a fresh reference in order to get the question authoritatively decided.

O. 21, R. 89 runs thus:

(1) Where immoveable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court.

(a) for payment to the purchaser, a sum equal to five per cent. of the purchase-money, and

(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2) Where a person applies under R. 90 to set aside the sale of his immoveable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application, under this rule.

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.

Where the judgment debtor has sold the property privately subsequent to the auction sale, who is entitled to apply under this rulethe judgment-debtor or his vendees In Subbarayudu v. Lakshmi Narasamma (I.L.R., 38., Mad., 775) the learned Judges, Sadasiva Aiyar and Spencer, JJ., decided that the judgment debtor in such cases cannot apply: and this is consistent with two other cases, Gantasola Jagannadhan v. Thathavarthi Ramabrahmam (54 I.C., 753) (disposed of by the same Judges) and Lakshmi Animal v. Sankaran Nair (24 M.L.J., 205) decided by Benson and Sundara Aiyar, JJ., in which it was held that the vendee can apply.

On the other hand, Sir Abdur Rahim, J. in C.R.P. No. 1216 of 1918 has strongly dissented from this view, and has adopted that expressed by a Bench of the Bombay High Court in Pandurang Laxman v. Govind Dada (I.L.R., 40., Bom., 557). In that case Batchelor and Shah, JJ., arrived at the conclusion that the judgment-debtor was the owner contemplated by the rule: and it was he, just as under the previous Code, who could apply. The same conclusion was reached by a Bench of the Patna High Court in Musammat Dhanwanti Kuer v. Sheo Shankar Lall (4 Pat. L.J., 340).

The conclusion of the Allahabad High Court differs both from that of our own Court on the one hand, and of the Bombay and Patna High Courts on the other. It was held in Ishar Das v. Asaf Ali Khan (I.L.R., 34 All, 186) that neither the judgment-debtor nor his vendee could apply in such a case as the present.

No case has been quoted to us from the Calcutta High Court.

For ourselves it is sufficient to say that on the argument addressed to us we are strongly inclined to agree with Batchelor J., in Pandurang Laxman v. Govind Dada (I.L.R., 40., Bom., 557) and to adopt his argument.

It is probably of little practical importance, whether the right of application is decided to be with the judgment-debtor or his vendeeprovided that one of them has it and that it is decided authoritatively and beyond all doubt which of them it is. But such a decision is imperatively called for: and in view of the divergence of views expressed, we do not think the matter will be satisfactorily set at rest even for this Court, if we merely follow the decision in Subbarayudu v. Lakshminarasamma (I.L.R., 38 Mad, 775). We are therefore constrained to make a fresh reference.

On the second point, that of jurisdction, the views expressed in Lakshmi Animal v. Sankaran Nair (24 M.L.J., 205) and Subbarayudu v. Lakshminarasamma (I.L.R., 38 Mad, 775) are clearely at variance. We are inclined to think that if the judgment-debtor was entitled to apply, the Lower Court, in dismissing his application as incompetent, in effect, failed to exercise a jurisdiction vested in it by law: and that it would be a case falling under Sect. 1

1

5. But here also a reference to a Full Bench seems desirablemore especially as we are referring the other question.

We therefore refer the following questions for the opinion of a Full Bench.



1. Where the owner of immoveable property sold in execution of a decree subsequent to the Court sale sells the property to another, does the right to apply under O.21, R.89 to have the sale set aside lie with him, or with his vendee



2. Does the dismissal of an application under O 21, R 89 on the ground that it was made by a person not entitled to apply fall within Sect. 115 of the Civil Procedure Code, so as to give this Court the power of revision

John Wallis, C.J.

[1] The interpretation of the words "whose immoveable property has been sold", which were found in Section 311 of the Code of 1882 as to setting aside sales for irregularity and were used in Section 310-A, enacted subsequently, as to setting aside a Court sale on payment of the decree amount and five per cent on the purchase money, gave rise to much difference of opinion, and were not reproduced in the corresponding Rules 90 and 89 of Order 21 of the Code of 190

8. As regards Section 310-A there was a conflict of opinion as to the nature of the interest which was sufficient to justify an application under the section and also as to whether a transferee by way of private sale from the judgment debtor after attachment but before the court sale, and a similar transferee after the court sale, were persons authorized to apply under the section. In Paresh Nath Singha v. Nabogopal Ghattopadhaya (1901) I.L.R. 29 Cal 1 it was decided by a Full Bench in Calcutta, Rampini, J. dissenting, that a mortgagee was a person whose immoveable property had been sold. In Ramchandra v. Rakhmabai (1898) I.L.R. 23 Bom. 450 it was, that a purchaser prior to the Court sale was not entitled to apply, whereas in Srinivasa Ayyangar v. Ayyalhorai Pillai (1897) I.L.R. 21 Mad 416 it was held that he could. Again in Kallar Singh v. Toril Mahton and Anr. (1897) 1 Cal. W.N. 24 it was. that a purchaser by private sale after the Court was not entitled to apply, whereas a contrary view was taken in Appayya Chetti v. Kunhati Beari (1906) I.L.R. 30 Mad. 214. These difficulties it was held endeavoured to meet in the new Code by substituting for "any person whose immoveable property has been sold" in Section 310-A the words "any person either owning such property or holding an interest therein by virtue of a title acquired before such sale."

[2] On the language of this rule it was held by Benson and Sundara Aiyar, JJ. in Lakshmi Ammal v. Sankaran Nair which was followed on this point in Subba Rayudu v. Lakshmi Narasamma (1913) I.L.R. 38 Mad. 775 that a purchaser subsequent to the court sale is not precluded from applying, the words "by virtue of a title acquired before such sale" being read as applicable only to the words "holding an interest." This is no doubt a possible construction of the rule, but it has not been accepted in any other Court and is opposed to Ishar Das v. Isaf Ali Khan (1906) I.L.R. 80 Mad. 214. On the face of the rule words in question seem equally applicable to both classes of persons mentioned, and no reason has been suggested why a subsequent transferee by way of sale should be allowed to apply while a subsequent transferee of a lesser interest should not. On the other hand the previous conflict of decisions suggests that the intention of the amendment was to affirm Srinlvasa Ayyangar v. Ayyathorai Pillal (1897) I.L.R. 21 Mad. 416 : 8 M.L.J. 54 and Kallar Singh v. Toril Mahlon and Anr. (1897) 1 Cal. W.N. 84 and to overrule Bhayi Bhlmji v. Administrator General of Bombay (1906) I.L.R. 80 Mad. 214 and Appaya Chetti v. Kunhati Beari. (1906) I.L.R. 80 Mad. 214.

[3] Having regard to the natural meaning of the words and the history of the rule I think we should accept the view that a purchaser subsequent to the court sale is precluded from applying under the rule, and I would accordingly overrule Lakshmi Ammal v. SankaranNair .and answer this part of the first question accordingly. The same result follows on the view taken in Pandurang Lakshman v. Govind Dada (1916) I.L.R. 40 Bom. 557 and in Mussummat Dhanvanti Koer v. Sheo Sankar Lal (1919) 4 Pat. L.J. 340. that the person owning the property is all along the judgment-debtor, as in this view the purchaser subsequent to the court sale can only come in by virtue of an interest acquired after the sale. I feel however quite unable to accept this construction. Having regard to the previous decisions, I cannot help thinking that if the legislature had meant "judgment-debtor" they would have said so.

[4] The next question involved in the reference is whether the judgment-debtor retains his right to apply after selling the property privately subsequently to the Court sale, and in dealing with this question we must not lose sight of the similar question arising under the rule as to the position of a judgment-debtor who has effected a private sale subsequently to the attachment and before the Court sale, and who was held by Jenkins, C.J. in Magan lal v. Doshi Mulji (1901) I.L.R. 25 Bom. 631 to have been none the less entitled to apply under Section 3

10. A as a person "whose immoveable property has been sold". This decision would be inapplicable under the new Code if the rulings in Ishar Das v. Isaf Ali Khan (1911) I.L.R. 34 All 186 and Subba Rayudu v. Lakshmi Narasamma (1913) I.L.R. 38 Mad. 775 that a judgment debtor who effects a private sale subsequently to the Court sale is not entitled to apply, are correct, as the same reasoning will apply to a private sale after attachment but before the court sale. It seems to me exceedingly unlikely that the Legislature intended to alter the law as laid down in Maganlal v. Doshi Mulji (1916) I.L.R. 40 Bom. 557 so as to prevent a judgment-debtor who had effected a private sale either before or after the Court sale from applying, and I agree with the learned Judges in Pandurang Lakshman v. Govinda Dada (1916) I.L.R. 40 Bom. 557 and Mussummat Dhanvanti Koer v. Sheo Shankar Lal (1919) 4 Pat. L.J. 340 that we should not put such a construction on the rule if it can possibly be avoided. Section 310 A was introduced in the interests of the judgment-debtor to protect him from losing his property by a Court sale at an undervalue as too often happens. Now, so far as the judgment-debtor s property is concerned, his interest in setting aside the Court sale is just as great when he has effected a private sale after attachment as when he has not. On setting aside the court sale, if he has not effected a private sale, he gets back the property itself; if he has effected a private sale after attachment, he gets the price into which he has converted the property. If he fails to set aside the court sale, the private sale goes off and he gets neither the property nor the price. The right to set aside the sale given him by the Code puts him much in the position of a mortgagor and he loses his equity of redemption unless the sale is set aside. He therefore retains a clear interest in setting aside the sale.

[5] The construction of the rule however presents considerable difficulties. It has been suggested that, as all sales after attachment are void under Section 64 as against all claims enforceable under the attachment, private sales after attachment should be disregarded and the judgment-debtor treated until confirmation as the person owning the property. The private sales however are good as between the parties to them and the legislature would not have used the words " owning such property" if they had merely" meant the judgment-debtor. Moreover they appear to have amended the rule with the express object of establishing the right to apply of the purchaser after attachment but before the Court sale which had been denied in Bhayi Bhimji v. Administrator General of Bombay (1898) I.L.R. 23 Bom. 430. If, then, we hold a purchaser before the court sale to be " a person owning such property" there appears to be no sufficient reason for saying that a purchaser subsequent to the Court sale is not also a person owning such property, even though he may not be entitled to apply under the rule and, as there cannot be two persons owning the same property at the same time, it would be impossible on this view to say that the judgment-debtor continues to be the " person owning such property " within the meaning of the rule when he has effected a private sale whether such a sale was before or after the court sale.

[6] On the whole I have come to the conclusion the course which appears to present fewest difficulties is to hold that the judgment-debtor whose private sale after attachment is necessarily subject to the setting aside of the Court sale retains even after the private sale a sufficient interest in the property within the meaning of the rule to entitle him to apply, and I would so hold, agreeing in the result with Pandurang Lakshman v. Govinda Dada (1916) I.L.R. 40 Bom. : 559 and Mussummat Dhanwanti Koer v. Sheo Sankar Lal (1919) 4 Pat. L.J. 340 and differing from Ishar Das v. lsaf Ali Khan (1911) I.L.R. 34 All. 186 and overruling Subba Rayudu v. Lakshmi Narasamma (1913) I.L.R. 38 Mad. 775 As regards the other question I agree with my learned brothers.

Oldfield, J.

[7] I concur in the answer proposed by my lord to the first question referred. But I prefer with all due deference to justify that conclusion on the grounds that the judgment-debtor, even after the court sale and after a subsequent sale to a private purchaser, is still owner of the property, and that such purchaser in the case before us, although he may hold an interest in it, is not within the rule, because his title was not acquired before the court sale.

[8] That construction of the legal position was adopted by Batchelor, J. in Pandurang Laxtnan v. Govind Dada (1916) I.L.R. 40 Bom. 557, and it is, it seems to me, the only one strictly recqncilable with the prohibition in Section 64 Civil Procedure Code of any private transfer pending the attachment. For, although under that section such a transfer is void, not as between the parties to it, but only against claims enforceable under the attachment, the transferee cannot be regarded as actually the owner of the attached property at the time when the payment has to be made or until the attachment and court sale have been set aside. No doubt, on this view the necessity for the reference in Rule 89 to " any person owning the property " instead of to "the judgment-debtor" remains without an explanation. The same difficulty was expressed in Paresh Nath v. Nabogopal Chattopadhaya (1901) I.L.R. 29 Cal.

1. (F.P.) in connection with the expression " person whose immoveable property has been sold" in Section 310 A of the former Code. It is true that there was no question there of a transfer as made by the judgment-debtor after either the attachment or the Court sale; and it is, I agree with my Lord, probable that the words in Rule 89 by virtue of a title acquired before such sale, which, I further agree, qualify both "property " and " interest," were introduced with reference to the cases, to which he refers. But the decision was authoritative, being given by four learned Judges, Rampini, J. dissenting; and the judgments turned on the distinction, drawn in language, which anticipated that used in Rule 89, between the owner of property and the owner of an interest in it. With that distinction, introduced newly by the rule, we are at present concerned; and it is a fair conclusion that it was introduced to embody explicitly in the law the result of Paresh Nath v. Nabogopal Chattopadhaya (1901) I.L.R. 29 Cal.

1. (F. P.) It is then significant that the use of the expression " any (1916) I.L.R. 40 Bom. 557-person whose immoveable property has been sold" instead of " the judgment-debtor " was explained (vide the judgment of Maclean, C.J.) as authorizing the mortgagee, who alone was then in question, to pay the decree amount, and not with reference to any suggestion that after a transfer the transferee was the person owning the property or whose property had been sold, as distinguished from the judgment-debtor, who had merely an interest therein. This decision no doubt supplies no affirmative explanation for the reference to the "owner of the property." which is applicable to the facts before us; and the phrase may have been used without consideration of the position of a transferee of full rights and may have been simply imported from Paresh Nath v. Nabogopal Chattopadhaya (1901) I.L.R. 29 C.

1. (F. B). But that case in some degree sup-ports the result, which general principle, I think, involves that the reference in Rule 89 to persons holding an interest in the property does not cover the judgment-debtor after a transfer of ownership and I would therefore reach our conclusion on that basis. This, may add, involves no expression of opinion as to whether the transferee is such a person, since none is necessary on the present reference, the transfer in question in it having been after the court sale.

[9] The second question referred is whether the case is one for the exercise of our revisional powers. The answer to it must in my opinoin be in the affirmative in accordance with the judgment of the Judicial Committee in Balakrishna Udayar v. Vasudeva Ayar (1917) I.L.R. 40 Mad. 703 : 33 M.L.J. 69 (P.C.) since the lower court s action consisted in a refusal to deal with the judgment-debtor s petition a non-exercise of their jurisdiction, not in any inclusion of law or fact, in which the question of jurisdiction was not involved.

Kumaraswami Sastri, J.

[10] I agree in holding that a judgment-debtor who transfers his interest in property subsequent to the court sale is competent to avail himself of the provisions of Order 21, Rule 89 of the Code of Civil Procedure.

[11] The right was first given to him by Section 310 A introduced in the Code of Civil Procedure of 1882 by Act V of 1894 and his alienation of the property subsequent to the Court sale was held not to be a bar to his application under the section Narain Mandal v. Surendra Mohan Tagere (19O4) I.L.R. 32 Cal. 107 Moganlal v. Doshi Mulji (1901) I.L.R.25 Bom. 63

1. There was a conflict of decisions on matters which did not touch the present question and the section was re-drafted in its present form in the Act of 1908 in order to set at rest the conflict of decisions referred to by Mookerjee, J. in Dulhin Mathura Koer v. Bangsidhari Singh15 Cal. L.J. 88 Though it settled some points in controversy it raised others of a more difficult nature and there has been a conflict of decisions as to the rights of the judgment-debtor and alienees from him subsequent to the court sale. In Ishar Das v. AsafAlikhan (1911) I.L.R. 34 All. 180 it was held that neither the defendant nor the alienee after the court sale was entitled to apply to the defendant be-cause he had parted with all his interest in the property at the date of the application and the alienee because he came in within the express prohibition of the section. The Bombay High Court in Pandurang Lakshman v. Govind Dada (1917) I.L.R. 40 Bom. 557 and the Patna High Court in Mussumtnut Dhanwvanti Koer v. Sheo Sankar Lal (1919) 4 Pat. L.J. 340 and Lakshmi Narain Agarwala v. Kali Prosanno Battacharji 52 I. C. 344 held that the defendant was entitled, to apply not with standing the alienation by him but that the alienee was precluded by the terms of the section. The view taken in Madras has been that the defendant is incompetent as he had no subsisting interest in the property at the date of the application but that a purchaser from him was entitled. In Ananta Lakshmi Ammal v. Sankaran Nair Benson and Sundara Aiyar, J. were of opinion that the words " by virtue of a title acquired subsequent to the sale " do not refer to the word owner, but only to the words "holding an interest therein " so that while a mortgageelessee or other person holding a lesser interest was precluded the vendee was competent. In Subbarayadu v. Lakshmi Narasamina (1913) I.L.R. 33 Mad. 775 Sadasiva Aiyar and Spencer, JJ. followed the decision in Ananta Laksml Ammal v. Sankaran Nair and while holding that the defendant had no right they were of opinion that the subsequent purchaser had. Sadasiva Aiyar, J. was of opinion that it was an elementary principle of law that unless a statute clearly allowed it a man who has no right in a property on the date of filing a suit or making an application in respect of that property cannot be allowed to file that suit or make that application " and that as Ananta Lakshmi Ammal v. Sankaran Nair allowed the alienee to make the application, there was no reason why the judgment debtor should also be allowed to make it " in disregard of the plain rule of jurisprudence." Spencer, J. expresses no opinion as to whether the purchaser could apply as he was not a party to the application. In Jagannadhan v. Ramabramam (1919) 54 I. C. 753 the same learned Judges held that it was not open to the judgment-debtor to apply. In C. R. P. No. 1216 of 1918, Abdur Rahim, J. without deciding the case was of opinion that the decisions in Anantha Lakshmi Ammal v. Sankaran Nair and Subbarayadu v. Lakshmi Narasimham (1913) I.L.R. 38 Mad. 775 holding that a subsequent alienee can apply went against the plain provisions of Rule 89, and that there was no reason to limit the words " by virtue of a title acquired before such sale" to the words " holding an interest therein." The learned Judge was of opinion that the decision in Pandurang Laksman v. Govind Dada (1917) I.L.R. 40 Bom. 557 was correct. This case was posted before a Full Bench which without deciding the larger questions raised decided that as the applicant was a mortgagee from the defendant after the court sale he was clearly a person prevented by the rule from applying. Ayling and Odgers, JJ. in the order of reference are strongly disposed to agree with the view of Bachelor, J. in I.L.R. 40 Bom. In Seturamaswami Nayanivaru v. Syed Mir Hussan Sahib (1918) I.L.R. 42 Mad. 50

3. Seshagiri Aiyar and Phillips, JJ. held that a judgment-debtor who had executed a sale-deed but not registered it was competent to apply. They did not decide the question whether the registration would make any difference.

[12] I am unable to agree with the view taken by the Allahabad High Court in Ishar Das

v. Asaf Khan (1918) I.L.R. 42 Mad. 50

3. that neither the judgment-debtor nor his alienee can take advantage of the provisions of Rule 8

9. The main object of the enacting of Section 310A was to enable the judgment-debtor to prevent his property from being sold below the market value and he can in most cases only do so by raising money elsewhere as it is not likely that a person able to discharge the decree amount would allow his property to be sold in execution simply for the luxury of his having to pay 5 per cent to the purchaser. When a Judgment-debtor sells property in order to avail himself of the provisions of the section the gain to him is clearly the difference between the consideration he receivesand the price at which his property has been sold. There is no reason to suppose that the legislature in enacting Rule 89, wanted to deprive him of this and to penalize his attempt to save himself from loss by raising money when his property has been undersold. The only question is whether the judgment-debtor or his alienees or both can apply.

[13] With all respect I am unable to see why the purchaser from the defendant should be able to apply while the mortgagee or lessee should be precluded as the plain language of Rule 89, excludes both as being transferees after the execution sale. I agree with my Lord, Oldfield. J. and Rahim, j. in thinking that the words "by virtue of a title arising subsequent to the sale " apply to the words "owning such property " as well as to the words " holding an interest therein ".

[14] So far as the judgment-debtor is concerned it is clear that he had the right to apply at the date of the sale and I see nothing in Rule 89, compelling me to hold that he loses that right because of the alienation. The rule of general jurisprudence as to the necessity of the applicant having an interest in the property at the date of the application would not prevent a judgment-debtor who has parted with his interest from applying under Rules 55 and 69 of Order 21, Rule 55, empowers the judgment-debtor to get the attachment raised by paying the decree amount and its removal proclaimed and under Rule 69, he can stop the sale by paying the amount specified in the proclamation. There are no very strong grounds for holding that Rule 89, bars him especially when the peculiar position of judgment-debtor as regards the ownership of his property created by Sections 64 and 65 of the Code are considered. So far as the decree-holder is concerned the alienation is void and so far as the Court purchaser is concerned, title after confirmation vests in him from the date of purchase and not from the date of confirmation and unless the sale is set aside it is difficult to see what title the judgment-debtor can convey to his vendee. All he can do is to convey such interest as would vest in him should the sale be set aside and as Rule 89, expressly prevents the alienee subsequent to the court sale from applying, the only person that can apply must be the judgment-debtor. Where conveyance would pass title only if the vendor can make an application or do a specified act, (the purchaser being prohibited by law from doing so) I think the judgment-debtor has a sufficient interest in the property to enable him to apply to have the sale set aside as his alienation is contingent on it.

[15] As regards the jurisdiction of this High Court, I am clearly of opinion that a Court which refuses to entertain an application on the ground that the petitioner has no locus standi fails to exercise a jurisdiction vested in it by law. I need only refer to the decisions of the Privy Council in Balakrishna Udayar v. Vasudeva Aiyar (1917) I.L.R. 40 Mad. 793 : 33 M.L.J. 69 (P.C.) and to Lakshmi Ammal v. Sankaran Nair . Mussummal Danvanti Koer v. Sheo Shankar Lal (1919) 4. Pat. L.J. 340 Birj Mohan Thakur Rai v. Umanach Chowdhry (1892) I.L.R. 20 Cal. 8.