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Judgment
Alfred Henry Lionel Leach, C.J.—In the year 1936, the first respondent filed a suit to enforce the payment of a debt secured by a mortgage
of the properties now in suit and other properties. On the 7th August, 1936, he obtained a preliminary decree, and a final decree was passed early
in April, 1937. On the 7th July, 1942, the properties in suit were sold by the decree-holder in execution proceedings. The decree-holder himself
bought all the items except one for the sum of Rs. 2,800. The remaining item was bought by the second respondent for Rs. 2,500. On the 15th
July, 1942, the judgment-debtor conveyed these properties to the appellant for the sum of Rs. 200. It is Alleged that the conveyance was made in
pursuance of an agreement for sale entered into on the 25th October, 1939. On the 30th July, 1942, the appellant paid into Court the Rs. 2,800
and the Rs. 2,500 with the five per cent, solatium required by Order 21, Rule 89, CPC and asked that the sales be set aside. The District Judge
held that the appellant was not a person holding an interest in the properties within the meaning of Rule 89 and refused to set aside the sales. The
appeal is from his decision.
In Sundaram alias Mytheenbibi Vs. Mamsa Mavuthar, Sheikkasim Mavuthar, , a Full Bench of this Court held that a purchaser of property sold
by the Court in execution proceedings was precluded from applying under the rule; in other words, a person buying property from a judgment-
debtor after a sale in execution had taken place was not within the rule. The question of whether such a purchaser should be allowed to apply was
considered by the Civil Justice Committee which sat in 1924-25 and the Committee made this recommendation:
We would, therefore, suggest in the interests of the decree-holders themselves that Order 21, Rule 89, should be so modified as to allow any
person claiming any interest in the property sold at the time of the sale or at the time of the petition or acting for or in the interest of such a person
to apply and get the sale set aside.
It was in pursuance of this recommendation that this Court amended Rule 89 in order that a person buying from a judgment-debtor may be
allowed to apply under it for an order setting aside the sale. The amendment achieves its object. The Full Bench decision in Sundaram alias
Mytheenbibi Vs. Mamsa Mavuthar, Sheikkasim Mavuthar, was given long before the amendment and no longer applies.
The appeal will be allowed and the sale set aside. The appellant is entitled to her costs.