09 October 1964
Supreme Court


Case number: Appeal (civil) 247 of 1962






DATE OF JUDGMENT: 09/10/1964


CITATION:  1965 AIR  834            1965 SCR  (1) 726  CITATOR INFO :  R          1971 SC1201  (4)  F          1976 SC 737  (14)

ACT: Transfer  of Property Act (4 of 1882), ss. 2(d), 5 and  100- Auction sale in execution of decree-If transfer of property- Charge-If enforceable against auction purchaser. Code  of  Civil  Procedure (Act 5 of 1908), 0.  21,  r.  90- Substantial injury-What is-Application to set aside  auction sale-Averment regarding substantial injury-Necessity for.

HEADNOTE: The  2nd respondent obtained a money decree against the  3rd respondent and in execution of that decree brought the  suit property  to sale and the appellant purchased it.  Prior  to the sale, however, there was a decree, in favour of the  1st respondent,  for  arrears of maintenance, and  a  charge  in favour  of the 1st respondent was declared over the  proper- ties  of  the 3rd respondent, including the  suit  property. The  1st respondent therefore filed an application under  0. 21, r. 90 of the Code of Civil Procedure, 1908, to set aside the  sale.   The Executing Court dismissed  the  application holding that she had failed to show any substantial  injury. The order was set aside by the High Court on appeal.  In the appeal  to  the  Supreme Court, it was  contended  that  the application  should  be  dismissed as :  (i)  there  was  no allegation  of  substantial injury in the  application,  and (ii)  in  fact  the  1st respondent  had  not  suffered  any substantial injury. HELD : The appeal should be allowed. While  s.  5 of the Transfer of Property Act,  1882  defines "transfer of property" only as a transfer effected by act of parties inter vivos, s. 2(d) provides that save as  provided by Chapter IV of the Act, the provisions of the Act are  not deemed  to affect transfers in execution of decrees.   Since the  positive  provision  in s. 2(d)  prevails  over  s.  5, Chapter IV and s. 100 in that Chapter would apply to auction sales in execution of decrees.  Section 100 provides that  a charge  shall  not be enforced against any property  in  the hands of a person to whom the property has been  transferred



for  consideration  and without notice of the  charge.   The result  would  be  that as a  consequence  of  the  material irregularity in not referring to the charge in favour of the 1st  respondent in the proclamation of sale under 0. 21,  r. 66  of  the Civil Procedure Code, 1908, the  1st  respondent would  not  be able to enforce the charge against  the  suit property  purchased by the appellant in auction sale.   When injury is thus implicit in the irregularity it would be  too technical  to  dismiss the application on  the  ground  that there  was  no  express averment of  substantial  injury  as required by the proviso to 0. 21 r. 90(1) of the Code.   But the  application  should however be dismissed,  because  the injury  suffered  by the 1st respondent was not  in  fact  a substantial injury. There were other propertiesto     the charge  and  they  would  be  available  to  meet  all   her legitimateby   way of maintenance. [731 C-D, G; 732  B; 733 E-G; 734 E-F; 735E-F, H] Nawal  Kishore v. The Municipal Board, Agra,  I.L.R.  [1943] AU.  453 (F.B.), R. L. Nanadkeolvar v. Sultan Jahan,  I.L.R. 31 Pat. 722 and  727 Munna  Singh  Allah  Singh v. Wasti Ram  Saraf  and  others, A.I.R. 1960 Punj. 296, approved. Arumilli  Surayya v. Pinisetti Venkataramanamma and  others, A.I.R. 1940 Mad. 701 and Creet v. Ganga Ram Gool Rai, I.L.R. [1937] 1 Cal. 203, overruled.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 247 of 1962. Appeal  from the judgment and order dated July 29, 1960,  of the Rajasthan High Court in D. B. Civil Misc.  Appeal No. 54 of 1957. Bishan  Narain, Amar Chand Inani and B. P.  Maheshwari,  for the appellant. B. D. Sharma, for respondent No. 1. The Judgment of the Court was delivered by Gajendragadkar C.J. This appeal arises out of an application made  by respondent No. 1, Smt.  Mukand Kanwar,  challenging the  validity of an auction sale held on the 14th May,  1954 in execution of a money decree passed in favour of Ratan Lal Dani,   Secretary,  Hindu  Charitable  Aushdhalaya,   Ajmer, respondent  No. 2, and against Umrao Mal, respondent No.  3. The  property sold at the auction sale is "old Daikhana"  at Ajmer.  On the 24th June, 1950, Umrao Mal who was the  owner of  the property, mortgaged it to the appellant Laxmi  Devi. Later,  respondent  No. 2 obtained a  money  decree  against respondent  No.  3 for a large amount, and in  execution  of this  money  decree he brought the property in  question  to sale.   Auction sale was accordingly held on the  14th  May, 1954,  and the appellant purchased the property  subject  to the  preexisting  mortgage in her favour.   The  amount  due under the mortgage was Rs. 33,264 and as  auction-purchaser, the  appellant  paid  Rs. 2,800 whereby  she  purchased  the equity  of  redemption  vesting in  respondent  No.  3,  the judgment-debtor.   It is the validity of this sale  that  is challenged in the present proceedings. Long before the mortgage was executed, respondent No. 3  had executed in favour of his mother, respondent No. 1, a  docu- ment whereby her maintenance was guaranteed.  This  document had  created  charge over certain  properties  belonging  to respondent  No.  3.  On  the  strength  of  this   document, respondent No. 1 sued- respondent No. 3 (civil suit No.  233 of 1952).  In this suit, she claimed arrears of  maintenance



and asked for a declaration that the properties specified in the plaint, which were the 728 same  as  the properties covered by the  previous  agreement between  the  parties,  were subject to  a  charge  for  her maintenance.  The trial Court gave her a decree for  arrears of  maintenance, but declined to make the declaration as  to charge  claimed by her.  This decree, was pronounced on  the 31st  July,  1952.  Against this decree,  respondent  No.  1 preferred  An  appeal  (No.  80 of  1952)  to  the  Judicial Commissioner,  Ajmer.  Her appeal succeeded and  the  charge over  the  properties  was declared  in  her  favour.   This decision was pronounced on the 10th February, 1954. After  the auction sale was held on the 14th May,  1954,  it was challenged by two separate applications, one was made by respondent  No.  3, the judgment-debtor, on the  28th  June, 1954,  and the other by respondent No. 1 on the  same  date. Both  these applications were made under 0. 21 r. 90 of  the Code of Civil Procedure.  The application made by respondent No.  3  was  dismissed on the 30th April,  1955,  while  the application  made by respondent No. 1 went to a trial.   The Executing  Court  which heard this application  tried  three issues.   The  first  issue was whether the  sale  had  been vitiated  by  any irregularity as required by 0. 21  r.  90. The  second was whether respondent No. 1 was a person  whose interests  had been affected by the impugned sale;  and  the third was whether the irregularity alleged by respondent No. 1 had caused substantial loss to her.  All these issues were decided  in favour of respondent No. 1. In the  result,  the impugned sale was set aside on the 4th May, 1955. The  appellant challenged the correctness of  this  decision before  the Judicial Commissioner, Ajmer.  It was  urged  on behalf  of  the  appellant  that  the  application  made  by respondent  No. 1 did not satisfy the requirements of 0.  21 r.  90 of the Code inasmuch as appropriate  allegations  had not  been made in the application showing  that  substantial injury  had been suffered by respondent No. 1 by  reason  of the irregularities which, according to her, had vitiated the said  sale.   This  plea  was  rejected  by  -the   Judicial Commissioner.   It was then urged that respondent No. 1  was not  competent to make the said application.   The  Judicial Commissioner  did  not  accept even  this  plea.   The  last argument which was pressed before the Judicial  Commissioner was  that the finding recorded by the Executing  Court  that respondent  No.  1 had suffered substantial injury  was  not justified,   and  that  in  fact,  the  appellant   had   no opportunity to lead her evidence on that issue, because  all the  three issues on which the Executing Court had made  its findings  had been framed by it at a very late stage of  the proceedings.  729 This  plea was upheld by the Judicial Commissioner, and  so, he  set  aside the finding of the Executing  Court  on  that issue and sent the case back for disposal in accordance with law,  with  a  direction that the issue  as  to  substantial injury should be tried afresh.  This order was pronounced on the 26th August, 1955. After remand, the Executing Court considered the issue as to substantial injury and held that respondent No. 1 had failed to  show  any  substantial  injury.  As  a  result  of  this finding,  it ordered that her application under 0. 21 r.  90 should be dismissed, and the sale should be confirmed.  This order was pronounced on the 27th April, 1957. Aggrieved  by  this  order, respondent No.  1  preferred  an appeal, and since the High, Court of Judicature at Rajasthan



had  then come into existence, her appeal was heard  by  the said High Court.  The High Court has held that the Executing Court  was  in  error  in  coming  to  the  conclusion  that respondent  No.  1 had not proved substantial  injury.   The contentions  raised  by  the appellant  in  support  of  the ultimate  decision  reached  by  the  Executing  Court  were rejected by the High Court, and as a result, the application made  by respondent No. 1 was allowed and the impugned  sale set aside.  This appellate order was pronounced on the  29th July, 1960. It  is against this order that the  appellant has come to this Court   with  a certificate granted by  the said High Court.  Thus, it willbe noticed that the  sale which took place on the 14h May, 1954   still remains to  be confirmed. On  behalf of the appellant, Mr. Bhasin Narain has  conceded that as a person holding a charge over the property sold  at the auction sale, respondent No. 1 can rely on s. 100 of the Transfer  of Property Act and as such was competent to  make the  application  under  0. 21 r. 90.  Order  21,  r.  90(1) provides, inter alia. that where any immovable property  has been  sold  in  execution  of a  decree,  any  person  whose interests  are affected by the sale, may apply to the  Court to  set  aside  the  sale  on  the  ground  of  a   material irregularity or fraud in publishing or conducting it.  There is a proviso to this rule which is relevant for our purpose. This  proviso lays down that no sale shall be set  aside  on the  ground of irregularity or fraud unless upon  the  facts proved,  the  Court  is satisfied  that  the  applicant  has sustained substantial injury by reason of such  irregularity or  fraud.   While  conceding  that  respondent  No.  1  was entitled to make an application as a person whose  interests were affected by the impugned sale, Mr. Bishan Narain argues that if the application made by her is properly 730 construed, it would appear that the material allegations  of fact  which must be made by the applicant invoking 0. 21  r. 90(1),  have  not been made; and so,  the  said  application should  be. dismissed on that ground alone.  On the  merits, he contends that there is no evidence on which a finding can be made in favour of respondent No. 1 that she has  suffered substantial  injury by reason of any irregularity  committed in the conduct of the sale. The  application  made  by  respondent No.  1  is  no  doubt somewhat  defective, because it does not, in  terms,  allege that  as  a  result  of  the  irregularity  alleged  in  the application,  respondent  No.  1  has  suffered  substantial injury.   The  application avers that  before  the  impugned auction  sale was held, a proclamation had been issued,  but the said proclamation did not refer to the charge in  favour of  respondent  No. 1 which had already been  recognised  by decree in a suit between respondent No. 1 and respondent No. 3 and that naturally attracts the provisions of 0. 21 r.  66 of  the  Code.   Order 21 r. 66(2)  (e)  requires  that  the proclamation  shall be drawn up and shall specify as  fairly and  accurately  as possible any incumbrance  to  which  the property  sought  to  be sold is  liable.   The  failure  to mention  the  charge in favour of respondent  No.  1  would, therefore, constitute an irregularity within the meaning of 0. 21 r. 90(1).  This position is also not in dispute. The  contention,  however, is that the application  made  by respondent No. 1 does not show what injury she has  suffered as  a  result  of the said irregularity,  and  that,  it  is argued,  constitutes a serious infirmity in the  application which  would entail its dismissal.  On the other  hand,  Mr. Sharma for respondent No. 1 has relied on the fact that  the



auction  sale  would virtually wipe out  or  extinguish  the rights  which have accrued to respondent No. 1 by virtue  of the  charge declared by a decree in her favour, and  he  has suggested  that the legal consequence flowing from the  fact that  the auction sale has been held without notice  of  the charge  in  favour of respondent No.  1  itself  constitutes substantial  injury  to the interests of respondent  No.  1. This  argument is based on the latter part of S. 100 of  the Transfer of Property Act.  We will presently refer, to  this provision.  At this stage, it is enough to state that if Mr. Sharma  is  right  in contending that  an  auction  sale  of immovable  property  which  has  followed  the  proclamation issued  under 0. 21 r. 66 in which no reference to a  charge is made, materially affects the rights of the charge-holder, some  injury would automatically flow from the  irregularity alleged  in the application filed by respondent No.  1,  and so, it would not be 731 appropriate  to  hold that the said  application  should  be dismissed on the ground that no substantial injury has  been alleged as required by the proviso to 0. 21 r. 90(1). It is true that before an application made under 0. 21 r..90 can  succeed,  the applicant has to show that  the  impugned sale  was, vitiated by a material irregularity or  fraud  in publishing or conducting it; and as required by the proviso, it is also necessary that he should show that in consequence of   the  said  irregularity  or  fraud  he  had   sustained substantial  injury.  Therefore, Mr. Bishan Narain is  right when he contends that the application made by respondent No. 1  ought to contain an allegation in regard to the  material irregularity  as  well as an  allegation-as  to  substantial injury.   But, in our opinion, in a case like  the  present, where  substantial injury is alleged to be implicit  in  the material  irregularity set out in the application, it  would be,  too  technical to hold that the application  should  be dismissed  on  the preliminary ground that  no  specific  or express  averment  has been made as  to  substantial  injury suffered by respondent No. 1. Now,  in dealing with the question as to whether  respondent No.  1  can be said to have alleged that  she  has  suffered substantial  injury  by  reason of the  fact  that  she  has alleged  a material irregularity which, in law,  necessarily leads to substantial injury, it is necessary to consider the question  as  to whether the latter part of s.  100  of  the Transfer  of  Property  Act applies  to  the  present  case. Section  100  deals  with charges, and it  provides  when  a person  can  be said to have a charge on the  property;  and adds  that all the provisions hereinbefore  contained  which apply to a simple mortgage shall, so far as may be, apply to such charge.  It is common ground that respondent No. 1  can claim to be charge-holder as defined by s. 100. That  takes  us  to the latter part of s.  100.   This  part provides,  inter  alia,  that save  as  otherwise  expressly provided  by any law for the time being in force, no  charge shall  be  enforced against any property in the hands  of  a person  to  whom  such property  has  been  transferred  for consideration and without notice of the charge.  Mr.  Sharma contends that the auction-purchaser holds the property as  a result of the auction sale, and in that sense, the  property must be held to have been transferred to him.  He adds  that the charge was not notified in the proclamation, and so, the auction purchaser has no notice of the charge, and the  sale is undoubtedly supported by consideration.  In other  words, the case of the appellant directly falls under this part  of s. 100, and so, respondent



732 No.  1 would not be able to enforce her charge  against  the property  purchased  by the appellant at the  auction  sale. That, according to him, constitutes substantial injury. This argument raises the question as to whether the relevant provision  of s. 100 takes in the cases of auction  purchase at  all.   For answering this question, it is  necessary  to refer  to two other provisions of the Transfer  of  Property Act.   Section 2(d) provides that nothing  herein  contained shall  be  deemed to affect, save as provided by S.  57  and Chapter IV of this Act, any transfer by operation of law  or by,  or  in execution of, a decree or order of  a  Court  of competent  jurisdiction.   The effect of this  provision  is that the provisions of the Transfer of Property Act will not apply  to  any  transfer by operation of law or  by,  or  in execution  of,  a decree or order of a  Court  of  competent jurisdiction.   This  provision is clear and  emphatic.   It says that nothing in the Transfer of Property Act will apply to  the transfers just indicated; and that  would  naturally take in the whole of S. 100.  But there is an exception made to  this provision by S. 2(d) itself by the  saving  clause, and  this  exception  covers cases provided  by  s.  57  and Chapter  IV.  Chapter IV deals with mortgages  of  immovable property  and  charges.. and includes sections  58  to  104. Section  100, therefore, falls within Chapter IV;  and,  the result  of the saving clause is that s. 100 would  apply  to transfers  by  operation of law.  There  is,  therefore,  no doubt  that if the question as to the applicability  of  the latter  part of S. 100 to cases of auction sales had  to  be determined  only by reference to S. 2(d), the  answer  would clearly be in favour of such applicability. It  is  true that when S. 2(d) was originally  enacted,  the latter  part of S. 100 was not included in the  Transfer  of Property  Act; this was added in 1929 by S. 50 of Act 20  of 1929.   That,  however,  would make  no  difference  to  the interpretation of the relevant clause in s. 2(d).  The  fact that  the  saving  clause  included in s.  2(d)  as  it  was originally enacted, could not have taken in the latter  part of s. 100, makes no difference to its construction,  because as  soon  as the latter provision was added to  S.  100,  it became a part of the provisions contained in Chapter IV  and automatically  fell within the terms of the  saving  clause. If the legislature had intended that the provision added  to s. 100 in 1929 should not fall within the saving clause,  an appropriate  provision would have been made by  amending  S. 2(d)  in that behalf.  Therefore, s. 2(d) by itself  clearly supports  Mr. Sharma’s contention that the appellant who  is an auction-purchaser would be able to claim  733 immunity against the enforcement of the charge in favour  of respondent  No. 1 by virtue of the provisions  contained  in the latter part of s. 100. This  position, however, has become somewhat complicated  by reason  of the provisions contained in s. 5 of the  Transfer of  Property Act.  Section 5 provides, inter aria,  that  in the  following sections "transfer of property" means an  act by which a living person conveys property, in present or  in future,  to  one  or more other living  persons.   In  other words, in terms, the definition of the expression  "transfer of property" as used in all the sections of the Transfer  of Property  Act is intended to take in transfers  effected  by acts of parties inter vivos, and an auction-sale clearly  is not  such  an act.  Section 5 would,  therefore,  appear  to exclude auction sales from the purview of s. 100 altogether. This result would appear to be consistent with the provision



in  the preamble of the Act which says that the Transfer  of Property Act was enacted because it was thought expedient to define  and amend certain parts of the law relating  to  the transfer  of  property  by  act of  parties.   That  is  the position which emerges from the reading of s. 5 coupled with the  preamble; and that naturally raises the question as  to how to reconcile these two inconsistent positions. In our opinion, the positive provision contained in s.  2(d) must  prevail over the definition of "transfer of  property" prescribed by s. 5. No doubt, the purpose of the  definition is  to  indicate  the  class  of  transfers  to  which   the provisions  of the Transfer of Property Act are intended  to be  applied; but a definition of this kind cannot  over-ride the  clear and positive direction contained in the  specific words used by s. 2 (d).  As we have already seen, the result of the saving clause enacted by s. 2(d) is to emphasise  the fact  that  the provisions of s. 57 and those  contained  in Chapter IV must apply to transfer by operation of law.  Such a  positive  provision cannot be made to yield to  what  may appear to be the effect of the, definition prescribed by  s. 5, and so, we are inclined to hold that notwithstanding  the definition  prescribed  by s. 5, the latter part of  s.  100 must be deemed to include auction sales. This  question  has been considered by our  High  Courts  on several  occasions,  and, on the whole,  the  majority  view appears to be in favour of the conclusion which we have just indicated.   In Nawal Kishore v. The Municipal Board,  Agra, (1),  this  question  was referred to a Full  Bench  of  the Allahabad  High  Court,  because  there  appeared  to  be  a conflict between two previous decisions of (1)I.L.R. [1943] All. 453. 734 Division  Benches  of  the said High Court  on  this  point. These  two  decisions  were Rai  Indra  Narain  v.  Muhammed Ismail(1),  and  Municipal  Board,  Kanpore  v.  Roop  Chand Jain(2).   In the first decision, the Allahabad  High  Court had taken the view that auction sales do not fall within the purview  of the latter part of s. 100, while in  the  latter case,  a  contrary view had been accepted.  The  Full  Bench preferred  that latter view to the former.  Since this  Full Bench  decision was pronounced in the Allahabad High  Court, auction-purchasers have been consistently held to fall under the  latter  part of S. 100.  It has been held by  the  Full Bench that when the relevant clause in the latter part of S. 100  speaks of any property in the hands of person  to  whom such property has been transferred, the concept of  transfer is  wide  enough to include transfers effected  by  acts  of parties  as well as transfers effected by operation of  law. The  same view has been accepted by the Patna High Court  in R.  L.  Nanadkeolvar v. Sultan Jehan(3), and by  the  Punjab High Court in Manna Singh Al1ah Singh v. Wasti Ram Saraf and Others(1).   The  decision  of  the  Madras  High  Court  in Arumilli  Surayya v. Pinisetti Venkataramanamma and  Ors.(5) and  the  decision of the Calcutta High Court  in  Creet  v. Ganga Ram Gool Raj,(1) which appear to support the  contrary view  do not, in our opinion, correctly represent  the  true legal position in this matter.  Therefore, we must deal with the  present  appeal on the basis that as a  result  of  the failure of the proclamation to refer to the charge in favour of  respondent No. 1, she would not be able to  enforce  her charge  against the property purchased by the  appellant  by auction sale; and that means that the impugned sale has been conducted  in a materially irregular manner and as a  conse- quence of the said irregularity, some injury has resulted to respondent No. 1.



That  raises the question as to whether the said injury  can be  said to amount to substantial injury within the  meaning of proviso to 0. 21 r. 90(1); and this inevitably would be a question of fact.  The High Court appears to have held  that as  soon  as  it  is shown  that  the  charge  would  become unenforceable  against  the appellant  auction-purchaser  by virtue  of the provisions of S. 100, it follows as a  matter of  law  that  respondent No.  1  has  suffered  substantial injury, and so, the impugned sale must be set aside.  We are not prepared to accept this view.  We do not think it can be reason- (1)  I.L.R. [1939] All. 885. (2)  I.L.R. [1940] All. 669. (3)  I.L.R. (1952) 31 Pat. 722. (4)  A.I.R. 1960.  Punj. 296. (5)  A.I.R. .1940 Mad. 701. (6)  I.L.R. [1937] 1 Cal. 203.  735 ably  assumed as a matter of law that in every case where  a charge has become unenforceable against an auction-purchaser by  reason  of  the  fact  that it  was  not  shown  in  the proclamation preceding the auction sale, it follows that the charge-holder  has suffered substantial injury.  Whether  or not the injury suffered by the charge-holder is substantial, must   depend  upon  several  relevant  facts.    How   many properties have been sold at the auction sale; how many  out of  them were the subject-matter of the charge; what is  the extent of the claim which the charge-holder can legitimately expect to enforce against the properties charged, these  and other  relevant matters must be considered  before  deciding whether  or not the injury suffered by the charge-holder  is substantial.   It  is  from  this point  of  view  that  the material facts in the present case must now be considered. Properties  which are the subject-matter of the  charge  are five in number.  Out of these properties, it is property No. 3  alone  which has been sold at auction sale.   It  appears that  properties  Nos.  1 and 2 have already  ceased  to  be available to the charge holder, and so, the consideration of the question as to whether the injury suffered by respondent No.  1 is substantial, must depend upon the relative  values of  properties  Nos.  4  and  6.  This  question  has   been considered  by the Executing Court when the matter was  sent back  to  that Court by the Judicial  Commissioner  and  the Executing Court has made a definite finding that the  injury suffered   by  respondent  No.  1  cannot  be  said  to   be substantial.  According to it, properties Nos. 4 and 6 which would  be available to respondent No. 1 would be  enough  to meet all her legitimate claims against the  judgment-debtor, respondent  No.  3.  The  value of Property  No.  4  is  Rs. 1,18,967  whereas  the  value  of  property  No.  6  is  Rs. 1,25,464.   The Executing Court has taken into  account  the amount which respondent No. 1 is entitled to claim by way of maintenance  from respondent No. 3, has also borne  in  mind the fact that respondent No. 1 is an old lady past 70  years of  age and has come to the conclusion that, on  the  whole, the  sale of property No. 3 to the auction-purchaser  cannot be  said to have caused substantial injury to her.   In  our opinion, it is difficult to differ from this conclusion; and so,  it follows that though respondent No. 1 has been  able, to  show that her charge could not be enforced  against  the appellant, it is not shown that this circumstance has caused substantial  injury to her.  The result, therefore, is  that the requirement of the proviso to 0. 21 r. 90 of the Code is not satisfied in the present case. 736



We ought to add that pending the appeal before this  Court, respondent No. 3, Umrao Mal has died leaving behind him  his mother  respondent  No. 1 and his widow, and the  estate  of Umrao  Mal  has  devolved  on  these  two  widows;  and  so, respondent  No.  1 has now become the owner of part  of  the properties  against  which  she would  otherwise  have  been entitled to proceed in execution of tier maintenance decree. The  result is, the appeal is allowed, the order  passed  by the High  Court  is  set  aside  and  the  application  made  by respondent  No.  1 under 0. 21 r. 90  is  dismissed.   There would be no order as to costs throughout. Appeal allowed. 737