ORDER
Mack, J.
1. A simple but interesting point arises on this revision petition, namely, whether a decree-holder, who has a charge on property, can apply under Order 21, Rule 89 C. P. C. to set aside the court sale held in execution at his or her own instance. The District Munsif answered the question in the affirmative but the learned District Judge took a different view and held that Order 21, Rule 89, C. P. C:, did not apply to decree-holders. The charge-holder is the petitioner and is strenuously opposed by the auction-purchaser, who it may be mentioned, bought two acres and 97 cents of lands of which 77 cents were wet in the auction for only Rs. 192.
2. The charge-holders were a widow Jayalakshmi Ammal and her minor daughter, who in O. S. No. 417 of 1944, was granted maintenance with a charge on certain items of property. In execution, they brought this land to sale with this result. They filed two applications, under Order 21. Rule 89 and also under Order 21, Rule 90. They obviously could not prosecute both simultaneously in view of Rule 89 (2) and withdrew the application under Rule 90.
3. Order 21, Rule 89 (1) has undergone more than one change. The old original Section in the Code was Section 310(a) which read as follows:
“Any person whose immovable property has . been sold under this chapter may apply to have the sale set aside………”
In — ‘Paresh Nath v. Nabogopal’, 29 Cal. 1 a Full Bench of the Calcutta High Court, by a majority of four Judges to one held that a mortgagee came within the definition of a person whose immovable property has been sold. But in that case the mortgagee was not the decree-holder, who brought the property to sale.
4. Order 21, Rule 89 as it was enacted in the Code of 1908 read as follows:
“Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside.”
A decision in point under this rule is — ‘Adenna v. Chinna Ramayya’, 51 Mad. 770, a Bench decision of this court in which Madhavan Nair and Curgenven JJ. held that a lessee, subject to whose lease immovable property was sold in court auction, can apply under Order 21, Rule 89 to have the sale set aside. There is an interesting observation in the judgment, which considered the scope of Order 21, Rule 89 to the following effect:
“Any more restricted meaning would apparently limit resort to the rule to the judgment debtor or to one of several joint judgment debtors, or in the very unusual case of the mortgagee decree-holder applying to have the sale under his own decree set aside.”
It is not clear from that decision what led the learned Judges to refer to the last alternative category of case. Nor can the learned advocate, who relies on this decision, refer me to any case in which the mortgagee decree-holder was held to be entitled to apply under Order 21, Rule 89 to set aside a sale in execution under his own decree.
5. Order 21, Rule 89, as it now stands reads as follows:
“Where immovable property has been sold in execution of a decree, the judgment-debtor, or any person deriving title from the judgment-debtor, or any person holding an interest in the property may apply to have the sale set aside…………”
As the Rule stands, the first point for determination is whether the charge-holders fall into one of the alternative categories of persons entitled to file such an application, that is, of persons holding an interest in property. Mr. Lakshminarayana Reddy, who has argued for the auction-purchaser with persistence and at some length referred me to some decisions, which differentiate between a mortgage, a charge and a lease.
I am in complete agreement with the differentiation made in those decisions. There can, however, be no doubt that as regards a mortgage, charge and a lease, the mortgagee, charger-holder and the lessee all have an interest in the property mortgaged, charged or leased. Nor can there be any doubt of the eligibility of the charge-holder to file an application under Order 21, Rule 89 in cases where property is brought to sale on which he has a
charge by another decree-holder and not by himself.
6. The interesting point then arises whether the charge-holder is precluded from applying under Order 21, Rule 89 because he is bringing the application in execution of a decree at his own instance. The learned District Judge has carefully considered the peculiarity in the result, namely that if a decree-holder himself is allowed to make the deposit and set aside the execution sale for which he has applied under Order 21, Rule 89 (1) he merely deposits the money, withdraws it and pays it himself. No doubt, under Order 21, Rule 89 (l)(b) the deposit is for payment to the decree-holder.
I am unable, however, to see anything in this result, which precludes a decree-holder from applying under Order 21, Rule 89 (1), if he is a person who has an interest in the property he has brought to sale, apart from his attachment of the property in execution of his own decree. It cannot, in my view, be possibly said that a charge-holder has no interest in the charged property, in particular, a widow, who is vitally interested in it for the payment of her future maintenance. This is obviously a case in which the widow was greatly dissatisfied with the low price this land fetched in court sale and wanted to have the court sale set aside whether under Order 21, Rule 89 or under Order 21, Rule 90. She filed applications under both sections and appears to have been legally advised that she was entitled to press her application under the former section as a person holding an interest in the property.
7. I am unable to agree with the learned District Judge in his view that Order XXI; Rule 89 is confined only to judgment-debtors or persons deriving interest from them. This would nullify or render nugatory the last alternative category of persons entitled to apply under Order 21, Rule 89 (1). This is a peculiar type of case in which a section, which primarily contemplated applications by judgment-debtors or persons holding from them, has been so worded — in my view, intentionally so worded — as to confer a right of filing applications under this section to all persons holding an interest in the property, although they may be mortgagee decree-holders, or charge-holders, and even in execution of the decree which they have obtained.
8. This petition is allowed with costs throughout. The order of the learned District Judge is set aside and that of the learned District Munsif restored.
