JUDGMENT

Zafar Ali, J. - This is an appeal by a judgment-debtor under Order 43, Rule 1(j), Civil P.C., against an order refusing to set aside a sale. The refusal was based on two grounds, viz., (1) that the judgment-debtor's application was not entertainable as he had failed to implead the auction-purchaser as a respondent, and (2) that he had failed to produce any evidence in proof of his objections. Both these grounds are untenable.

2. With regard to (1), the executing Court has relied on Ajuddin Ahamed v. Khoda Bux [1919] 50 I.C. 5 which was followed by a Judge of the Patna High Court in Sumitra Kuer v. Damri Lall A.I.R. 1921 Pat 498. In the former case a Division Bench of the Calcutta High Court held that

under the present Code of Civil Procedure, the auction-purchaser is a necessary party to a proceeding for setting aside an auction-sale and that, therefore, a Court has no jurisdiction to hear an application for setting aside a sale under Order 21, Rule 90, Civil P.C., to which one of the auction-purchasers is not added as a party until after the expiry of the period fixed by law for making him a party.

3. This view was expressly dissented from in Bibi Zainab v. Paras Nath A.I.R. 1924 Patna 37, and contrary view was taken in Ganesh Bal Naik v. Vithal Vaman Mahalya [1913] 37 Bom. 387, Raj Chandra Das v. Kali Kanta Das A.I.R. 1923 Cal. 394, Abdur Rahman v. Har Narayan Das A.I.R. 1922 Oudh 129, Ghazanfar Husain v. Ram Ratan [1914] 17 O.C. 306 and Iswardas Marwari v. Biseswar Lal Marwari A.I.R. 1926 Pat. 266.

4. Now, the law which requires that the auction-purchaser should be heard before passing an order affecting him is contained in the proviso to Clause (2), Rule 92, Order 21, Civil P.C. That proviso runs thus:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

5. It is clear that the requirements of the above proviso are fulfilled if no final order affecting the auction-purchaser is passed unless notice of the application to set aside the sale is given to him. This proviso does not fix any period for giving that notice to the auction-purchaser, and there is no provision in the Indian Limitation Act for such notice. As no order affecting the auction-purchaser had yet been made the application could not have been thrown out on the ground No. (1).

6. As regards the second ground, the data fixed for evidence was 22nd November 1926. On that date eight out of the 15 witnesses summoned by the judgment-debtor were in attendance but they were not examined and the case was adjourned to the following day for hearing arguments on the petition filed by the auction-purchaser. No witnesses, however, appeared the next day, but even if the judgment-debtor was responsible for their non-appearance on that date, he was entitled to have his remaining witnesses summoned and examined. It cannot be said that he failed to produce any evidence.

7. I, therefore, set aside the order of the executing Court confirming the sale and direct that the judgment-debtor's application be enquired into and disposed of according to law. The respondents to pay the judgment-debtor's costs in this Court.