ORDER :- This rule raises the question can a co-sharer who is not in any way a party to the suit or execution proceedings in which a share of a tank has been sold in execution make an application under O. 21, R. 89, Civil P.C. The trial Court bas decided that he can the lower appellate Court relying on an incorrect version of R. 89 as in force in West Bengal, has decided that he cannot. 2. The tank in question was part of the joint property of three brothers, one of whom is the depositor under R. 89 and another the deceased lather of the judgment debtors. The other joint properties of the brothers were partitioned, the tank remaining joint. The sale was held in execution of a money-decree. 3. Authority on the question is curiously meager, no case of this Court directly in point had been cited before me. It was considered in Bisheshar Kuar v. Hari Singh, 5 All 42 : (1882 AWN 146) in 1882 under the provisions of the Old Code, but in relation to S. 311 or O. 21, R. 90 as it then stood. The co-sharer there had actually made a bid at the sale and relied in his application under O. 21, R. 90 (S. 311) on O. 21, R. 88 (S. 310). His application was rejected on the ground that he was not "either the decree-holder or a person whose immovable property had been sold." The decision is not of assistance in interpreting the present R. 89 [as introduced in 1933] "any person, whose interest is affected by such sale," or the similar words of R. 90 "any person,... whose interests are affected by the sale." 4. In Ramchandra v. Srinivasa, 51 Mad 246 : (AIR (15) 1928 Mad 399) in 1927 it was held that the co-sharer was a "person holding an interest in the property sold," as every member of an undivided family has an interest in joint family property, that is to say, not the share of each, but the whole corpus of the property. The case was one under R. 89, Jackson, J. remarking that if one brother chose to pay another brothers debts rather than see the ancestral property pass to stranger [a transaction which may easily involve the family in discredit and inconvenience] there is no objection to his doing so. The case was one under R. 89, Jackson, J. remarking that if one brother chose to pay another brothers debts rather than see the ancestral property pass to stranger [a transaction which may easily involve the family in discredit and inconvenience] there is no objection to his doing so. The decision was not under the wider terms of R. 89 as in force here. 5. A co-sharer is given a right under O. 21, R. 88 to have priority if he makes an equal bid with a stranger. [It is true the right seems not to be one of much substance]. This surely recognises that he has some interest in the sale, if not in the property sold in the strictest meaning of the term. But R. 89 does not specifically requite the depositors interest that is affected is to be strictly is the property sold. The rule has been amended to give a wider application. It seems anomalous to suggest then that if a co-sharer fails to take advantage of R. 83 [or misses an opportunity to do so through no fault of his own] he should not be able to take advantage of R. 89 to protect the same interest as is apparently intended to be protected [however inadequately] by R. 89. On the plain meaning of the words now used, it seems to me clear that a co-sharer is certainly a person whose interest is affected by the case and he is entitled to apply under R. 89. If the sale happens to be a share of an occupancy holding his interest is now recognised to the extent that he is given a right of pre-emption under S. 26F, Bengal Tenancy Act. 6. In Kunjolal v. Idurali, AIR (14) 1927 Cal 82 : (97 IC 757) relied on by the opposite party in this rule, there are some remarks which appear opposed to the above view, but examination of the case shows that the present point was not really in issue. The facts are not very clearly stated in the judgments delivered, but I have referred to the original records, which show that the defendants were co-sharers as heirs of the original holder Hanif. They also claimed to have purchased the share of Keshab one of the sons of Hanif from Keshabs daughters. The facts are not very clearly stated in the judgments delivered, but I have referred to the original records, which show that the defendants were co-sharers as heirs of the original holder Hanif. They also claimed to have purchased the share of Keshab one of the sons of Hanif from Keshabs daughters. The suit was for partition the plaintiffs claiming to have purchased the share of Keshab by a kobala, and the share of Sabdan, another son of Hanif, in execution of a decree against him. The plaintiffs failed as far as the alleged purchase of Keshabs share by kobala was concerned, but succeeded in respect of the share of Sabdan. The argument put forward for the plaintiff appellants as regards the share of Sabdan was that : "the only person who could raise the question [as to the irregularity of the sale] would be either the decree-holder or a person whose interest was affected by the sale, that these persona could only rise the question under the provision of O. 21, R. 90, Civil P.C." Cuming, J., remarked on this : "This contention, I think, is correct. So far as regards the third party it is not open so them to challenged the validity of the sale. It is not contended for the respondents that the sale was void. The irregularities of which they complain were admittedly irregularities which might or might not reader the sale voidable. But it would be voidable only at the instance of the judgment-debtor whose interests were affected by the sale (sic) and the judgment-debtor alone could get the sale set aside it he succeeded in proving that he had sustained substantial loss by reason of the irregularities. To succeed in their defence, the respondents must be able to get aside the sate. If they cannot set aside the sale the title of the plaintiffs is perfectly good title." He, therefore, held that the defendants could not raise the defence that the sale was not valid. Page, J., agreed, but added a comment suggesting that he was of opinion that the defendants had acquired their interest as co-sharers by purchase after the execution sale. In fact this was not so. Page, J., agreed, but added a comment suggesting that he was of opinion that the defendants had acquired their interest as co-sharers by purchase after the execution sale. In fact this was not so. It was their purchase of Keshabs share [which the plaintiff also claimed to have acquired by Kobala] which took place of the execution sale of Sabdans share, they were already co-sharers as heirs of Hanif. 7. The argument put forth was clearly sound but it was entirely unnecessary to hold that the defendants could not have made an application under O. 21, R. 90. The only question for decision was whether an execution sale could be set aside by the suit [or more strictly by way of defence in a partition suit]. The basis of the decision is that no one can do this; it is immaterial whether the person seeking to do it is one who might have succeeded in an application under O. 21, R. 90. The position is clear. A third party whose interest is not affected by the sale cannot challenge the sale either under O. 21, R. 90, or by suit. Certain persons can challenge the sale under O. 21, R. 90 but not by suit. When the question is whether the sale can be challenged by way of suit, it is immaterial therefore whether the challenger could have challenged it under O. 21, R. 90 or not. It is possible perhaps to read into the remarks of Cuming, J., an expression of opinion that the defendants as co-sharers could not have challenged the sale under O. 21, R. 90, but the opinion is not clearly expressed, and was quite unnecessary to the main decision, namely, that they could not challenge it by way (?) of defence in the partition suit. 8. Page, J. twice stated that the defendants were not persons competent to apply to have the sale set aside under O. 21, R. 90 but gave as his reason that they were persons "who acquired an interest in the property after the sale had become absolute and the sale certificate had been issued", a reason which I think is not supported by the actual facts, but makes the decision no authority on the question of the rights of a co-sharer who had acquired or inherited his interest before the execution sale. 9. 9. This case, therefore, is no authority conflicting with the view I have expressed above. 10. In Kankairam v. Kalicharan, AIR (13) 1926 Nag 63 : (91 IC 218), the position of co sharers in a partition suit with reference to an execution sale against a co sharer came also into consideration. There the argument put forward was in the opposite form, namely, that because the co-sharer could have applied under O. 21, R. 90 he was not entitled to raise the question of the validity of the sale in the partition suit. The case is not of any real assistance in the present matter as in effect the co-sharer did not seek to have the execution sale set aside. The execution sale was in respect of a decree against the plaintiffs brother Karu, and purported only to sell Karus interest, but described his interest as being the whole house in which the plaintiffs brother claimed a share. The plaintiff was allowed to establish that he had such share. 11. The circumstances in Mehdni Prasad Singh v. Nand Keshwar Prasad Singh, 2 pat. 386 : (AIR (10) 1923 Pat 451) were somewhat similar. The shares of plaintiffs 1 and 2, co-sharer in a Mitakshara family had been sold in execution. They had failed in an application under O. 21, R. 90. Then they along with plaintiff 3, their brother and plaintiff 4, son of plaintiff 1, brought a suit apparently in form for setting aside the sale. The Subordinate Judge held that as plaintiff 3 could have applied under O. 21, R. 90 and had not done so he could not bring a suit. The High Court held that if the property was joint [and not separate as the defendants claimed], there would not be a decree setting aside the sale, but a decree should be made in a particular form denning the position of the defendants as purchasers in execution of a share of a Mitakshara joint family, and giving plaintiff 3 a right of possession. 12. Except that the cases have some discussion of the position of co sharers in relation to execution sales in particular circumstances they are not of much assistance in the present matter. 13. For the petitioner I have also been referred to two cases in which it is contended that a broad interpretation of the phrase whose interests are affected have been taken. 13. For the petitioner I have also been referred to two cases in which it is contended that a broad interpretation of the phrase whose interests are affected have been taken. Mundrika Sing v. Nand Lal Singh, AIR (28) 1941 pat 204 : (191 IC 639) and Kamiruddin Khan v. Sachidananda Jana, AIR (35) 1948 Pat 66 : (13 Cut LT 25). These lend some support to the view I have expressed. 14. I hold therefore that the learned munsif was correct in his view that the applicant before him was entitled to make a deposit under O. 21, R. 89. I therefore make the rule absolute setting aside the order of the learned District Judge, and restoring that of the trial Court. I make no order as to costs. Rule made absolute.