JUDGMENT

It is the second judgment debtor, who came up with an application under Rule 90 of Order XXI C.P.C. before the execution court on the ground of irregularity and fraud in the conduct of the sale with a prayer to set aside the sale on that ground. The mischievous intention behind the application is well evident from the fact that the person who purchased the property in court auction, who would deemed to be a party to the execution even for the purpose of Section 47 C.P.C., was not made as a party. In short, the sale in favour of the auction purchaser was sought to be set aside without impleading him as a party. Hence, the application submitted is liable to be dismissed on that sole ground.

Secondly, it is an application by the second judgment debtor to set aside the sale on the reason that the upset price fixed is not proper. It is not permissible to set aside a sale under Rule 90 of Order XXI C.P.C. or to maintain an application under that Rule on any of the grounds which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Necessarily, the challenge with respect to the upset price fixed ought to have been raised before the draw