Brij Kishore Lal v. Pratap Narain Opposite Party.

Mullick, J.:— The first question is whether a reversioner to a Hindu widow's estate is entitled to apply under O. 21, R. 90 of the CPC, to set aside the sale of immovable property. In order to consider the effect of the amendments to S. 311 of the Code of 1882, which is now replaced by R. 90, it will be helpful to consider also the provisions of the cognate S. 310-A, which is now represented by R. 89. Under S. 310-A a person whose immovable property had been sold was competent to make a deposit to have the sale set aside, and it was held that the provision applied to a reversioner whose interest purported to have been sold by the Court: Pankhabati Chaudhurani v. Nonihal Singh(1). In my opinion what has to be looked at, whether under S. 310-A of the Code of 1882 or under O. 21, R. 89 of the present Code, is not what the Court can sell but what it purports to sell and if in that which has been sold any person has an interest as distinguished from mere personal claims relative to the property, then that person is certainly competent to make a deposit. It follows therefore that those who have an interest paramount to that of the judgment-debtor are not affected by the sale and cannot apply. It is not necessary that the applicant should have an interest in praesenti. It is now settled that, although the reversioner has only a spes successionis which is not a transferable interest within the meaning of the Transfer of Property Act, he has an interest which entitles him to protect the corpus and to obtain declarations with the object of ultimately recovering it when the reversion opens, and I agree that he would be still entitled under the present Code to apply under O. 21, R. 89.

2. Under S. 311 of the Code of 1882 the reversioner would have been no less competent to apply to set aside the sale; for that section, too, conferred the power to do so upon a person “whose immovable property had been sold.” O. 21, R. 90 of the present Code goes, in my opinion, still further and the words “whose interests are affected by the sale” would seem to include not only a reversioner but possibly also persons who have no interest in the property itself, such as persons entitled to specific performance under a contract for sale, or licensees. It is not necessary however to decide for the purposes of the present case how wide the scope of the word “interests”, is; it is sufficient to say that it includes a reversioner in the position of the petitioner before the Subordinate Judge. The next question is whether assuming that the petitioner in question can apply, we should interfere with the order of the learned District Judge. Now the Subordinate Judge held that the petitioner was incompetent to apply and also that there had been no inadequacy of price. The District Judge disagreed on both points and set aside the sale.

3. The decree-holder then moved this Court and obtained a Rule only in respect of lots Nos. 4, 5 and 6. In support of the Rule it is contended before us that the learned District Judge has declined to exercise jurisdiction by coming to no finding on the point whether there has been any inadequacy of price in respect of these lots. The learned District Judge appears to have thought that there was some doubt as to what, if any, saleable interest the judgment-debtor had in these lots by reason of a previous auction-sale, and, as there was no clear finding upon the point by the Subordinate Judge, he set aside the sale of these lots too. I think under the circumstances the learned Judge acted quite rightly, and there was no refusal on his part to exercise jurisdiction.

4. The result is that the application is rejected with costs. Hearing fee three gold mohurs.

5. Jwala Prasad, J.:— I agree.

V.S/R.K

6. Application rejected.