HUKUMCHAND Vs. BANSILAL

JUDGEMENT

(1.) This is an appeal by special leave from the judgment of the Bombay High Court and arises in the following circumstances. The respondents were members of a Co-operative Housing Society and had created a mortgage on their property in favour of the society. As the amount due under the mortgage was not paid, the matter was referred to the Registrar, Co-operative Societies, and he made an order dated May 1, 1957 that the respondents should pay a sum of Rs. 9,000 and odd and interest at Rs. 12 per cent per annum from August 1, 1953 till satisfaction of the debt due to the Society. The Registrar, further directed that if the amount was not paid in cash to the society the property mentioned in his order would be sold in satisfaction of the amount. The order also provided that in case the amount due was not realised from the sale of the property, the society would have the right to proceed against the respondents for the balance. The amount was not paid as directed in the order. Consequently an application was made to the civil court as provided by law for recovery of the amount under the order of the Registrar which amounted to a decree. In consequence the property on which charge was created by the order of the Registrar was brought to sale. The sale was held on April 7, 1958 and the appellant being the highest bidder, the sale was concluded in his favour.

(2.) Normally the sale would have been confirmed after 30 days if no application had been made under Order XXI, Rule 90 of the Code of Civil Procedure, for Order XXI, Rule 92 inter alia provides that "where no application is made under Rule 89, or Rules 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute". As an application had been made on May 3, 1958 under Order XXI, Rule 90, the sale could not be confirmed till that application was disposed of. Proceedings under Order XXI, Rule 90 seems to have gone on upto October 7, 1958. On that day, it appears that one of the respondents gave evidence as a witness. Thereafter it was the turn of the Society decree-holder to give evidence. But before the evidence of the society began, it appears that respondents requested for one month's time to deposit the decretal amount along with the auction-purchaser's commission. They also appear to have stated that in the event they were prepared to withdraw their application under Order XXI, Rule 90. The society as well as the auction-purchaser had no objection to time being allowed. The executing court therefore granted time to the respondents till November 21, 1958 to deposit the entire decretal amount along with the auction-purchaser's commission. After time was thus allowed with consent of the parties, the application under Order XXI, Rule 90 was dismissed as withdrawn with no order as to costs.

(3.) On November 20, 1958, an application was made by the respondents in which they referred to what had been ordered on October 7, 1958. They further stated that November 21, 1958 was a holiday and it was not possible to deposit the amount on that day though they were prepared to do so. They consequently prayed for time for one day so that the deposit might be made on November 22, 1958. No order was passed on this application on November 20, 1958, though it bears an endorsement of the executing court to the effect that it had been filed on November 20, 1958. November 21, 1958 being a holiday it appears that the matter came before the executing court on November 22. On that day the court noted that no amount had been deposited. The order-sheet also shows that counsel for the respondents prayed for time for a fortnight. The society decree-holder as well as the auction-purchaser (appellant) opposed the prayer for extension of time. The executing court held that as the society-decree-holder and the auction-purchaser were not willing to extend time the court could not extend time which had been given under an agreement of the parties by way of compromise. The court therefore rejected the prayer for extension of time and thereafter confirmed the sale as required by Order XXI, Rule 92 as the application under Order XXI, Rule 90 had already been dismissed on October 7, 1958.