Applicability of the provisions of Section 47.

JUDGMENT :- Both the Courts below are in error when they held that the application filed by the judgment-debtor was one under O. 21 R. 90 C. P. C. and not under Sec. 47. It is clear from the case set out in the application for setting aside the sale for the judgment-debtor attacked the very order for sale, stating that the order was procured by misrepresenting the facts to the Court, and that therefore the order was illegal. An illegality of that kind will not amount to a mere irregularity or illegality in the publication or conduct of the sale, so as to come within O. 21 R. 90 C. P. C. The judgment-debtor will therefore have a right to challenge the sale that is the outcome of an order procured by a fraudulent misrepresentation in proceedings under S. 47 C. P. C. The executing Court will then have no power or jurisdiction to demand security from the judgment debtor, as it did in the present case.

This, however, is not the only error in the order of the lower appellate Court. The learned District Judge has held that S. 47 will not apply, as the execution proceedings related to a simple money decree. I am utterly unable to understand what the learned District Judge meant by this. If an execution sale is challenged as an illegal one, the judgment debtor has a right to challenge the same under Sec. 47 C. P. C. if the condition of that section has been satisfied. If there is no legal sale, the matter would concern primarily the judgment-debtor and the decree-holder, and therefore, an application under S. 47 will lie.

The circumstance that a third party becomes a purchaser in such a sale will not, for that reason, prevent the application of that section. The learned District Judge has completely mis-directed himself when he sought to apply the principle of the decision reported in Annamalai Mudali v. Ramaswami Mudali, 1941-1 Mad LJ 45 : (AIR 1941 Mad 161) (FB). It is true that a question which arises between an auction purchaser in a money decree and the judgment -debtor will not, of course, be one coming under S. 47 C. P. C. But when a question directly arises between the judgment-debtor and the decree-holder as in the case concerning the legality of sale, the principle referred to above will not apply. The auction purchasers title has not yet been protected as the sale had not been confirmed. The question at this stage therefore is between the decree-holder and the judgment-debtor. The appeal succeeds and the matter will be remitted to the trial Court, for disposal in accordance with law.

2. The order for security demanded by the executing Court was based on the misapprehension that the petition was filed only under O. 21 R. 90 C. P. C. I now find that there are allegations in the present case, which bring the case both under S. 47 as well as under O. 21 R. 90. In such a case it will be open to the Court to demand security in so far as that part of the petition under O. 21 R. 90 C. P. C. is alone concerned; but it cannot demand such security for the other part of the petition. It is a matter for consideration by the trial Court whether, in regard to that part of the petition falling under O. 21 R. 90 C. P. C. it should in the circumstances of the case demand security from the judgment-debtor or the Official Receiver who has now taken his place.

3. Mr. M. Ismail, appearing for the auction purchaser, seeks to support the judgment of the lower appellate Court by taking a preliminary objection that this second appeal at the instance of the Official Receiver will not be maintainable on the ground that the adjudication of insolvency was subsequent to the Court sale. The Official Receiver was a party to the proceedings before the lower appellate Court, and being a party it will be competent for him to file this appeal. There will be no order as to costs.

Appeal allowed.