P L D 1961 Dacca 303 (PLP)

4. Against the aforesaid appellate order, the petitioner moved this Court in its revisional jurisdiction, and obtained the present Rule.

5. Before me, the learned Advocate for the petitioner has passed the following two points in support of the Rule : (1) That the opposite party No. 1, Mst. Tahera Khatun, is not competent to make an application under Order XXI, rule 89 of the Code of Civil Procedure, to set aside the aforesaid sale, because she had purchased the said properties after they were attached, such purchase being void as against the auction pur chaser by virtue of the provisions of section 65 of the Civil Procedure Code. (2) That under the provision of Order XXI, rule 89 of the Code of Civil Procedure, the applicant must pay the entire amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. No partial deposit of the said amount is legally sufficient for maintaining an applica tion under the said rule 89 of Order XXI. With regard to the first point indicated above, learned Advocate for petitioner has drawn my attention to section 65 of the Code of Civil Procedure which runs thus "Where an attachment has been made any private transfer of delivery of the property attached or of any interest therein, and any payment to the judgment‑debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment." Learned Advocate then drew my attention to the provision of Order XXI, rule 89 of the Code of Civil Procedure which is quoted under : "Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may, apply to have the sale set aside on his depositing in Court‑ (a) for payment to the purchaser, a sum equal to five per cent of the purchase‑money, and (b) for payment to the decree‑holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree‑holder.

6. The argument addressed by the learned Advocate may be stated thus : A transfer of property, after it has been attached, is void against the auction‑purchaser in execution of the decree. He, therefore, submitted that a transferee from a judgment‑debtor after attachment is not entitled to apply under Order XXI, rule 89 of the Code of Civil Procedure to set aside the sale as such transferee cannot acquire any title against the auction‑purchaser at a Court sale, because of the provisions of section 65 of the Code of Civil Procedure, I have myself no manner of doubt that a transferee from a judgment‑debtor after attachment and before Court sale is entitled to apply for the said sale to be set aside under Order XXI, rule 89 of the Code of Civil Procedure. He has sufficient interest in the property so as to enable him to apply for the setting aside of the sale under Order XXI, rule 89‑A, transfer of an attached property after attachment is not wholly void under the terms of section 65 of the Civil Procedure Code. It is void only as against all claims enforceable under the attach ment. Such transferee is, therefore, certainly competent to make an application to set aside a sale under Order XXI, rule 89 of the Code of Civil Procedure. I need not elaborate this point any further as they are covered by a series of decisions of various High Courts of Pakistan and India. It will be sufficient to refer to the following cases Gosto Behari Biswas and another v. Sakar Nath Mookerjee and others (26 C L J 127) ; Mulchand Degadu v. Govinda Gopal and others (I L R 30 Bom. 572) ; Bhupendra Nath Roy Choudhury v. Jatindra Nath Roy Chowdhury (37 C W N 912) ; Pandiri Viranna v. Grandhi Sattiraju and others (A I R 1927 Mad. 445) ; Siyaram v. Rammarayan and others (A I R 1932 Nag. 21) : Naranapier v. Chidambaram Pillai and others (A I R 1933 Mad. 96) ; Jamna Das v. Jalal‑ud- Din and others (A I R 1936 Lah. 561).

7. I, therefore, hold that there is no substance in the first point argued on behalf of the petitioner.

8. The next point argued before me is that, where several properties are sold in a lot in execution of a decree it is not open to the judgment‑debtor to reply under Order XXI, rule 89 of the Code of Civil Procedure to set aside the sale of some such properties on depositing a part of the decretal amount specified in the proclamation of sale. Learned Advocate has drawn my attention to the following portion of the provision of Order XXI, rule 89 of the Code : " * * * * (b) For payment to the decree‑holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may, since the date of such proclamation of sale, have been received by the decree‑holder."

9. He has contended that the applicant must put in the entire amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. Unless he does so, he cannot maintain an application under Order XXI, rule

89. A deposit of a part of such amount would not entitle the applicant to make such an application. I am of opinion that this conten tion of the learned Advocate for the petitioner must be upheld. The applicant must fulfil the specific terms of Order XXI, rule 891 of the Code before he can make an application thereunder. I would not do for the applicant to deposit only a part of the amount specified in the proclamation of sale ; he must deposit t the entire amount. If he fails to do so, he cannot maintain the application. In support of this view, the following cases may be noted ; Kripa Nath Pal v. Ram Laksmi Dasya (1CWN703) ; Maharaja dhiraj Sir Rameshwar Singh Bahadur v. Mangal Prasad Sahu (ILR9Pat.310) ; Mannu Naik v. Mathura Prasad and others (I L R 55 All. 123). It is interest ing to note that a Division Bench of the Allahabad High Court in the aforesaid case of Mannu Naik v. Mathura Prasad and others, has distinguished the decision of the same Court in the case of Panna Lal v. Bhole Nath (I L R 3 All. 152). In the present case, admittedly Mst. Tahera Khatun, the applicant under Order XXI, rule 8 of the Code merely deposited the amount in respect of only three items of properties for which she wanted the sale to be set aside. She did not deposit the entire amount specified in the sale proclamation. In these circumstances, I hold that she cannot maintain the aforesaid application which must be dismissed.

10. Mr. Moinul Huq on behalf of opposite‑party No. 1, has asked me that this case should be sent back on remand to the original Court to consider an application under section 5 of the Limitation Act for giving the applicant an extension of time to make the necessary deposit. I do not think that I shall be justified in granting this prayer at this stage.

11. The result, therefore, is that I make this Rule absolute, and set aside the order passed by the Appellate Court below as well as that passed by the learned Munsif. The application of Mst. Tabera Khatun under Order XXI, rule 89 of the Code of Civil Procedure is rejected. The sale of properties in respect of items Nos. 1, 2 and 6 is hereby confirmed. Mst. Tahera Khatun, opposite‑party No. 1, will be entitled to withdraw the amount deposited by her on a proper application to the learned Munsif. I, however, make no order as to costs of this application.

12. The application for amendment of the original order for setting aside the sale is not pressed by learned Advocate for opposite‑party. It is, therefore, rejected. K. B. A. Rule make absolute.