Devassia Paily vs The Federal Bank Ltd. and others

M.M. Parled Pillay J.

Appellant filed E.A. 156(a) of 1984 in E.P. 90 of 1981 in O.S. 406 of 1978 of the Sub Court, Kottayam under Order XXI Rule 90 C.P.C. to set aside the sale. The Principal Sub Judge dismissed the petition holding that the appellant has no locus standi to file such an application. Appellant claiming to be a lessee under the judgment debtor had filed the execution application. The decree holder had obtained the decree on the strength of a mortgage.

If the appellant is aggrieved, he could have filed the application under Order XXI Rule 58. Order XXI Rule 58 (1) provides that where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection. Order XXI Rule 58 (2) reads:-

All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

Without any difficulty appellant could have filed the application under Order XXI Rule 58. But he chose to file the petition under Order XXI Rule 90. Under Order XXI Rule 90 sale can be set aside on the ground of a material irregularity or fraud in publishing or conducting it. As the appellant claims to be a lessee of the property, it cannot be said that his interests are affected by the sale as the judgment debtor''s right alone will be affected thereby Claiming to be a lessee appellant cannot circumvent Order XXI Rule 58 and invoke Order XXI Rule 90. It is useful to refer to the decision of the Privy Council in AIR 1941 45 (Privy Council) where the Court held:

A third party objecting to the sale of his property for the judgment-debt of another person cannot disregard Rule 58 of Order 21, and apply after the sale under Rule 90 of that order, treating the case as one of irregularity In publishing or conducting the sale.

As it is the specific case of the appellant that he has leasehold right over the property, he could have availed of the remedy under Order XXI Rule 58. The attempt on his part to set aside the sale on the ground of material irregularity or fraud in publishing or conducting the sale is shaker exercise in futility.

The Court below was justified in dismissing the execution application. There is no merit in the appeal. The E.F.A. is dismissed with no order as to costs.