An auction purchaser cannot apply to set aside a sale under 0.21 R.90 CPC.

1. The appellant who is the stranger-auction purchaser in execution of the decree in O. S.15 of 1964 on the file of the principal Subordinate Judge's Court, Ernakulam, complains against the dismissal of E. A. 813 of 1968 filed by him under S.151, Order2l R.90 and 91 C P. C., to set aside the court sale. The properties of the third defendant were purchased by the appellant in count auction on 11111968 for Rs. 9280.70 and he deposited Rs. 2321/-being 1/4th of the auction amount under 0.21 R.84 CPC. E.A. 813 of 1968 was filed on 18 111968 on the ground that the leasehold interest created by the 3rd defendant in the property in 1960 was not disclosed in the sale proclamation and its non-disclosure is an act of fraud practised by the decree-holder and the 3rd defendant on the intending purchasers and the court and therefore the sale is liable to be set aside. In E. A. 813 of 1968 the appellant also prayed for the return of the sum of Rs. 2321/-deposited by him. The decree-holder filed his objections on 26 111968. Thereafter and within fifteen days from the date of auction the appellant deposited the full amount of the purchase money payable under 0.21 R.85 CPC. and the amounts required for stamp duty for the issue of sale certificate under 0.21 R.94 CPC. It was after such deposit that he prosecuted E. A. 813 of 1968 which was dismissed by the execution court.

2. Though the person alleged to be the lessee of the third defendant was impleaded as a respondent in E. A. 813 of 1968 he was subsequently removed from the party array. The Subordinate Judge took the view that it is not open to an auction purchaser to pray for setting aside a court sale under S.151 or 0.21 R.90 or 91 CPC. It has to be pointed that no enquiry was conducted and no finding was given by the execution court on the question whether the properties sold in court auction are subject to any lease granted by the 3rd defendant.

3. There was considerable discussion at the Bar as to the maintainability of E. A. 813 of 1968 under 0.21, R.90 CPC. We shall first examine that question. The counsel for the appellant contended that even though his client had no interest in the property prior to the court sale he is even then a person'whose interests are affected by the sale, under 0.21, R.90 CPC. There is a sharp-difference of opinion on this issue, among the several High Courts and the question is not free from difficulty. The words any person whose interests are affected by the sale in 0.21, R.90, CPC. are no doubt of a wider import than the expression'a person holding an interest in the property sold' occurring in 0.21, R.89, CPC. The question is whether an auction purchaser has got any interests which are affected by the sale. If the word "interest" occurring in 0.21, R.90 CPC. is to denote interests independent of the court sale and not those arising by virtue of the court sale, then the auction purchaser has no right to apply. The reasonable view on a plain reading of the provision is to hold that the "interests" contemplated in 0.21, R.90 CPC. refer to interests not created by the sale itself but affected by the sale. The difference in the language in 0.21, R.89 and R.90 cannot have any bearing in this connection. If the decisions which have construed S.311 of the CPC., 1882 are relevant in this connection it is clear in view of the decision of the Judicial Committee in Birj Mohan Thakur v. Rai Uma Nath Chowdhry ILR. (1893) 20 Cal. 8, that an auction purchaser cannot apply to set aside a sale under 0.21 R.90 CPC The expression "person whose immovable property has been sold" in the Code of 1882 was construed in the full bench decision of the Calcutta High Court in Asrutunnissa Begum V. Ashruff Ali. ILR. (1888) 15 Cal. 488 to mean "any person whose interests were affected by the sale" and the legislature adopted these words in the 1908 Code. The non-inclusion of an auction purchaser in 0.21, R.90 CPC. especially because of the decision in Birj Mohun Thakur. v Rai