Rameshwar Bhagat and Another vs Hari Prasad Bhagat and Others

Agarwala, J.—The petitioners instituted a money suit in September 1929 and attached the property of the defendants before judgment. In November 1930 the suit was compromised, the judgment-debtors admitting liability for Rs. 4,000 and agreeing to pay off this amount by instalments, the last of which was payable in 1937. The opposite party sued the same judgment-debtors and obtained a money decree against them. In execution of that decree the opposite party sold the property which had been attached before judgment by the petitioners. The petitioners then made an application under Order 21, Rule 90, Civil P.O., to set aside the sale held in execution of the opposite party''s decree, alleging collusion and under valuation.

The opposite party raised a preliminary objection that the petitioners were not a party interested in the sale within the meaning of that rule. The preliminary objection was upheld by the first Court and was confirmed in appeal by the Subordinate Judge.

In support of their application in revision the petitioners relied on Dhirendra Nath Roy Vs. Kamini Kumar Pal, , Ravi Nandan Prasad Vs. Jagar Nath Sahu and Others , Lakhan Choudhury v. Bacha Lal Singh AIR 1930 Pat 451, Abdul Aziz v. Tafajaddin AIR 1914 Cal 524 and Adanamoli Chetti v. Chinnaswami Reddi AIR 1926 Mad 959 in all of which cases the view was taken that since the amendment of the Code in. 1908 the words "persons interested in the sale" include a person having any interest whatsoever pecuniary or proprietary in the sale. On behalf of the opposite party a decision of Chakravarti, J., in Badiar Rahaman Vs. Sarada Kanta Datta and Others, , was relied upon.

That decision purported to follow a previous Divisional Bench decision of the Calcutta High Court in Jogendra Nath v. Monmotha Nath Ghosh (1912) 15 IC 668, which in turn appears to be based on cases decided before the amendment of 1908 and which was a case in which the applicant under Rule 90 had attached property before judgment but had not obtained judgment at the date of the application. In the course of the decision in 17 C.W.N. the learned Judges said:

The position of the person who has obtained an attachment before judgment and has not obtained a judgment, is that he has a chance of obtaining a judgment for satisfaction whereof he is entitled to proceed against the property given to the Court by way of security. He has undoubtedly no present interest which is affected by the sale.

With that view I respectfully agree but in the present case not only did the petitioners obtain an attachment before judgment, but they subsequently obtained a decree, and for that reason this case is very different from the case reported in Jogendra Nath v. Monmotha Nath (1912) 15 IC 668.

The petitioners by obtaining a decree against the judgment-debtors have to my mind, obtained an interest which is affected by the sale of any of the assets of the judgment-debtors against which the petitioners could proceed in execution of their decree, and if one of those assets is the subject-matter of a sale at the instance of another judgment-creditor, the petitioners are persons whose interests are affected by the sale in so much as the chances of their being able to realize the amount of their decree are lessened by the sale held in execution of the later decree.

In my opinion the various cases which have been cited above in support of the petitioners'' case should be followed. The result is that this application will be allowed with costs to the petitioners: hearing-fee one gold mohur.