This is an appeal against an order of the Subordinate Judge of Cuttack, passed under sec. 312 of the Code of Civil Procedure on the 9th of November 1899.
The facts of the case are these:—In execution of a mortgage-decree certain properties were sold by the Subordinate Judge at the instance of the opposite party to this appeal. The same property was said to have been attached by another person, the applicant before the Subordinate Judge and the Appellant to this Court, in execution of a decree passed by a Revenue Court. The Subordinate Judge has not given the dates of the sale and the attachment; but we are informed that the sale in execution of the mortgage-decree took place on the 15th September 1899 and that is not controverted. The attachment at the instance of the person, who applied to the Subordinate Judge under sec. 311 is said by him to have taken place on the 20th of March 1899. By the opposite party it is alleged that attachment took place on the 28th of September 1899. It is impossible for us from the record of these proceedings to say which is the correct date. But we must assume for the purposes of this appeal that the allegation of the Appellant is correct and that his attachment took place prior to the sale held at the instance of the opposite party.
Now, the question which arises in this case is, whether the applicant before the Subordinate Judge and the Appellant in this Court was entitled to apply to the Subordinate Judge, as he did, to have the sale held at the instance of the opposite party set aside under sec. 311 of the Code of Civil Procedure. In other words, is he “the decree-holder or any person whose immoveable property has been sold,” so as to give him a locus standi under the provisions of that section?
The Subordinate Judge has held that he is not such a person and that he does not come within the provisions of that section, and the applicant now appeals to this Court against that order.
Learned counsel on his behalf contends, first, that he is the “person whose immoveable property has been sold;” and, secondly, that if that be not so, then he comes within the words “the decree-holder,” which appear at the commencement of sec. 311. We, however, are unable to see that there is any force in either of these contentions.
We will deal first with the Appellant's assertion that he is the person whose immoveable property has been sold; and we do not see how he can arrogate to himself such a position. He is not the owner of the property. He has only got an attachment upon it. Learned Counsel on his behalf contends that, under the provisions of sec. 91, cl. (f) of the Transfer of Property Act he is entitled to redeem the property. Bat, even if this be so, that, we think, would only give him an interest in the property, but would not make him the owner of the property, so as to bring him within the words “any person whose immoveable property has been sold.” Learned counsel relies upon the Full Bench case of Asmutunnissa Begum v. Ashruff Ali, in which it has been held that “a person claiming by title paramount to the judgment-debtor is not within the meaning of the words” any person in the section.” That may be so; and it may be that the Appellant in this case is not “a person claiming by title paramount to the judgment-debtor.” But it seems to us that it does not follow that because that may be so, he is a person whose immoveable property has been sold within the meaning of sec. 311.
Now, turning to the second branch of learned counsel's arguments, namely, that the Appellant comes within the term “the decree-holder” which occurs, at the commencement of the section, we would say that, in our opinion, he cannot come within this term because “the decree-holder” must mean the decree-holder at whose instance the sale has taken place and the property has been sold. “The” is the definite article which points to one particular person and that person must in this case be, we think, the person at whose instance the sale has been held. We cannot see how, under the terms of the section, it can mean any decree-holder. But the learned counsel relies on the case of Lakshmi v. Kuttunni, in which it has been held that where one decree-holder had attached certain lands and another decree-holder against the same debtor had entitled himself to a rateable distribution of the assets under sec. 295 of the Code of Civil Procedure, the latter was entitled to apply under sec. 311 of the Code to set aside the sale on the ground of material irregularity.
Now, we can only say, with all respect, that we entirely dissent from this view; and, moreover, it seems to us to have less force than it might otherwise have as it appears to be a judgment of one learned Judge only (Kernan, J.).
The other learned Judge, who formed one of the Bench that decided this case (Brand, J.) was of a totally contrary opinion, and he says:—“It appears to me, then, that according to the ordinary rules of construction the words ‘the decree-holder’ should apply to the decree-holder at whose instance the property has been brought to sale.” He appears to have agreed in the judgment of his learned colleague only because he was not prepared to dissent from the conclusion arrived at by him. However this may be, this case even would not furnish any authority for the position, which learned counsel for the Appellant takes up, because the Appellant in this case has not applied under sec. 295, or entitled himself, so far as we can see, to a rateable distribution of the assets. This case of the Madras High Court has been adverted to and approved of in Ajudhia Prasad v. Nandlal Singh and Sorabji Edulji v. Govind Ramji. We will say no more with regard to these cases than this, that we respectfully dissent from the views expressed in them, and that we do not think that we are in any way bound by them. But we may, in passing, advert to a misapprehension under which Mr. Justice Aikman [who decided the former case, namely, that of Ajudhia Prasad Singh v. Nandlal Singh] appears to have laboured. He has there laid down that, in Lakshmi v. Kuttunni, it was held that the words “decree-holder” in sec. 311, mean any decree-holder who is entitled under sec. 295 to share in the proceeds of a sale. But we think that is going little further than the Madras decision went. Be that as it may, it has no real bearing in this case.
Now, learned counsel for the Appellant has cited three other cases of this Court, namely, the cases of Chattraput Singh v. Jadukul Prosad Mukerjee, Clark v. Alexander and Har Bhagat Das Marwari v. Anandram Marwari. These cases, however, do not seem to us in any way to support the view put forward by him in this appal. The first of these cases, that of Chattrapat Singh v. Jadukul Prosad Mukerjee, merely lays down that “a person who is not entitled to come under sec. 295 of the Code of Civil Procedure and share in the distribution of the sale proceeds is not included within the term decree-holder in sec. 311, nor is he entitled to apply under that section to set aside the sale.” But the Judges who decided that case did not lay down the converse of that proposition. They did not say that a person who is entitled to come in under sec. 295 is included within the term “decree-holder” in sec. 311 and entitled to apply under that section to set aside a sale. On the contrary, they appear to have expressly refrained from deciding that point; and, as we have said before, it must always be remembered that the applicant in this case is not a person who has applied under sec. 295. The other two cases [Clark v. Alexander and Har Bhagat Das Marwari v. Anandaram Marwari] are also not authorities in favour of the Appellant, and for the reasons, that they only lay down that sec. 295 of the Code does not require the transfer of a decree to the Court where the process of realization took place as a condition precedent to an application under sec. 295. That is to say, whether the decree which a person wishes to execute has been transferred or not, he may apply under sec. 295. That may be so; but, as we already said on two previous occasions, the applicant in this case has not applied under sec. 295.
Therefore, for these reasons, we think that the order of the Subordinate Judge appealed against is quite correct, and we accordingly dismiss this appeal with costs, five gold mohurs.
The Rule No. 2482 of 1899 is admittedly governed by the decision in this appeal; and we therefore discharge it with costs, which we estimate at five gold mohurs. The mortgage decree-holder, who is also a Respondent in the case, is entitled to his costs, which we estimate as two gold-mohurs in the appeal and two gold-mohurs in the rule. Let the record be returned to the lower Court without delay.
Appeal dismissed: Rule discharged.
S.C.S