JUDGMENT

Brown, J - The appellant, Ma Saw, was one of the judgment-debtors in a decree passed in Civil Regular No. 26 of 1923 of the Sub-divisional Court of Tavoy. In execution of that decree a piece of paddy land was attached and sold. Ma Saw applied to the executing Court t? have this sale set aside on the ground of fraud and material irregularity in conducting the sale; but her application was dismissed.

2. Some ten months later she filed the suit out of which this appeal has arisen. In that suit she has not made the original decree-holder a party but has named one defendant only, Maung Kyaw Gaung the auction-purchaser. She asked to have the sale set aside on the grounds of various irregularities and fraud in connexion with the sale. The trill Court dismissed the suit on the ground that the matter in issue fell within the scope of Section 47, Civil P.C., and that no separate suit, therefore, lay. On appeal the District Judge confirmed the decree of the trial Court holding that the suit was not maintainable under the provisions of Section 47 read with those of Rule 92, Order 21, Civil P.C. Ma Saw has now come in second appeal to this Court.

3. I have been referred to a number of conflcting decisions on the point whether a claim between an auction-purchaser and a judgment-debtor can be adjudicated on by the executing Court under the provisions of Section 47, Civil P.C. But I do not think that it is necessary to decide this doubtful point as in any case I do not think that the present suit, as framed, lies. As I have said, the decree-holder has not been joined as a party to the suit; but it seems to me that without the decree-holder being joined as a party, the points at issue cannot be decided as the decree-holder is quite clearly very much interested in the sale of the property; and the sale cannot be set aside as regards the auction-purchaser without also being set aside as regards the decree-holder. For the suit to succeed, it seems to me therefore necessary that the decree-holder also should have been added as a party and in the case of Prosunno Kumar Sanyal v. Kali Das Sanyal [1892] 19 Cal. 683, their Lordships of the Privy Council held that' a case for setting aside the sale by a judgment-debtor against the decree-holder and the auction-purchaser did fall within the scope of Section 244, of the old Civil P.C. corresponding with the present Section 47. On this ground alone it could be held in the present case that the present suit did not lie. But on another ground also I think it clearly does not lie.

4. Ma Saw was a judgment-debtor in the earlier case and she made an application under the provisions of Rule 90, Order 21 to have the sale set aside. Orders were passed against her under the provisions of Rule 92 of that order and the sale was confirmed. Clause (3), Rule 92 clearly provides that no suit to set aside an order made under this rule shall be brought by any person against whom such order is made. It has been suggested that Ma Saw has come to Court in this case in a different capacity from that in which she came in the execution proceedings. She claimed in her plaint that she was one of the co-owners of the land and as such intended purchasing the land. If what she means is that she merely wanted to exercise the rights of any member of the public to purchase at the auction-sale, then it seems to me that her suit" must fail as she would have no cause of auction, no material interests of hers having been affected; if, on the other hand, her claim is that as a co-owner she had a special right to purchase the whole land then clearly she comes within the scope of Rule 90, Order 21 under which any person whose interests are affected by the sale may apply. In these circumstances it seems be me to be idle to deny that she did not in her personal capacity make an application under Rule 90 and that the claim she now makes is not also one which she could have made under Rule 90. The facts, which she alleges in her plaint, are