MANGAL PRASAD Vs. KRISHNA KUMARMAHESHWARI

JUDGEMENT

(1.) - The appellants in this appeal are the judgment-debtors, the respondent No. 3 is the auction-purchaser and respondent No. 1 is the decree-holder .The facts leading up to this appeal are as follows:

(2.) It is contended by the learned counsel for the appellants before us that the High Court as well as the learned Civil Judge erred in law in treating the application under S. 47 of the said Code as an application under O.21, R. 90 of the said Code. It has been pointed out that some of the grounds of the objections set out in the said application under S. 47 are such as are not covered by O. 21, R. 90 of the said Code. This is clear from a perusal of the said objections and the provisions of Rule 90 of O. 21 of the said Code. In these circumstances, in our opinion the learned Civil Judge and the High Court were not justified in treating the said application under S. 47 of the said Code as an application under O. 2 1, R. 90 thereof. Hence the bar prescribed under sub-rule (2) of O. 21, R. 89 did not come into play at all. Merely on the reason of the pendency of the objections under S. 47 of the said Code it could not be said that the application under O. 2 1, R. 89 of the said Code was necessarily barred. In our view, therefore, there is considerable substance in the contentions of the appellants. However, merely setting aside the sale without giving any equitable relief to the auction purchaser would appear to us, in the facts and circumstances of the case, to be unfair. By reason of such events, as transpired the respondent No. 3 the auction-purchaser has been put in a position where a sum of money namely Rs. 1,44,000/-, probably more than what was required by the decree, has remained blocked as far as he is concerned for a substantial number of years.

(3.) Taking these factors into account we direct that the auction sale of the said properties shall be set aside on the appellants paying to respondent No. 3 the auction purchaser a sum of Rs. 1,44,000/- together with interest at the rate of 12% per annum from the date of deposit of the said amount till the date of payment. The said amount on calculation by the executing Court be paid by the appellants within a period of four months failling which the appeal shall stand dismissed with no order as to costs. In calculating the amount payable by the appellants to respondent No. 3 credit shall be given to the appellants for the sum deposited in Court and interest earned thereon, if any. The executing Court to calculate the actual amount payable by the appellants to respondent No. 3 within four weeks of an application being made to the executing Court for this purpose. The appeal is disposed of accordingly.