MRAMKRISHNA BHATTA Vs. BPARAMESWARA SOMAYAJI

JUDGEMENT

(1.) This appeal is directed against the order made by the learned Subordinate Judge of South Kanara in R. E. P. No. 47 of 1960 on his file on 6-3-1961. The order impugned is a short one and we may usefully quote the same;

(2.) The proved facts of the case are as follows: In execution of the decree in O. S. No. 52/1958 on the file of the learned Subordinate Judge of South Kanara, the respondent-decree-holder brought to sale certain properties belonging to the judgment-debtors (in R. E. P. No. 47/60). The Judgment-debtors raised objections to the draft proclamation of sale. Their objections were overruled. As against that order they appealed to this Court, which ap-peal was later converted into a Civil Revision Petition. During the pendency of the Civil Revision Petition, the properties brought to sale were sold. In the Civil Revision Petition, they prayed for the stay of further proceedings in execution. The Court ordered stay of confirmation of sale on certain conditions as regards security. The security ordered was not given: Therefore, the stay was dissolved and ultimately the Civil Revision Petition was dismissed. Thereafter, the judgment-debtors applied to the execution Court under Rule 90 of Order 21 to set aside the sale. Before admitting that application, the Court called upon the judgment-debtors to give security as contemplated by the first proviso (added by the Madras High Court) to Sub-rule (1) of Rule 90. The application to set aside the sale filed by the appellants was posted to 2-6-1961 for furnishing security. During the pendency of that application, the impugned order was passed (on 6-3-1961). It is urged on behalf of the appellants-judgment-debtors that the Court had no jurisdiction to pass that order as the application made by them under Rule 90 of Order 21 had not been disposed of on the date of that order. Rule 92(1) of Order 21 says:

(3.) Sri B. P. Holla has brought to our notice that as a result of the confirmation of the sale, his client had produced into Court a sum of Rs. 360/,-for the purpose of non-judicial stamps for issuing the sale certificate. He says that his client is entitled to the refund of the same or for other appropriate orders in view of our order in this appeal. We have not gone into that question. The same will be gone into by the Executing Court.