SIVARAMA IYER Vs. PICHANDI PILLAI

JUDGEMENT

(1.) The defendant in O.S. No. 986 of 1120 of the Padmanabhapuram Munsiffs Court is the Revision Petitioner in this case. The revision is from an order in execution. The decree-schedule properties were sold in court auction for the decree amount on 5.4.1124. The decree holder himself purchased the properties for Fs. 5731 7/16 (Rs. 804) which was the decree-debt. A petition was filed by the defendant under O.21 R.87 C.P.C. (Tr.) to set aside the sale on the ground of material irregularity and undervaluation. According to the defendant the properties are worth Rs. 30,000. A commission was issued to ascertain the value of the properties and according to the Commissioners report the properties are worth Rs. 15,300. There is a prior charge of about Rs. 7,000. The petition to set aside the sale was posted for evidence on 19.6.50. On that day the defendant offered to deposit the auction amount and interest within 8 months in two instalments. The decree holder accepted this offer. The court thereupon passed an order on 19.6.50 itself directing the defendant to pay the sale amount and interest in 2 equal instalments within 8 months and also ordered that the 1st instalment should be paid on or before 19.10.50 and the 2nd instalment on or before 19.2.51. It was also provided in the order that if any instalment was defaulted the petition to set aside the sale would stand dismissed and the sale confirmed that if both the instalments were duly paid the petition would stand allowed and the sale cancelled.

(2.) No amount was paid on or before 19.10.50 as directed in the order and therefore the court on that day itself dismissed the petition under O.21 R.87 and confirmed the sale. On 10.12.50 the defendant filed a petition to review the order dated 19.6.50 and to set aside the order dated 19.10.50 confirming the sale.

(3.) The main grounds alleged in the affidavit filed along with the petitioner that the defendant had not agreed on 19.6.50 to deposit the Ist instalment on 19.10.50, that the direction in the order dated 19.6.50 for deposit of the 1st instalment on 19.10.50 was against the terms of the compromise agreed to by him, that he was not aware of such a direction in the order, that time was not the essence of the contract between the parties, and that he was prepared to pay the whole amount. He therefore prayed that he should be allowed to deposit the amount and to have the sale set aside. The decree holder objected to this. The lower court rejected the petition of the defendant on the ground that he had submitted to the order of the court fixing the dates of payment, that the petition to review the order dated 19.6.50 was out of time and that as long as that order stood the petition to set aside the sale was not sustainable. This Revision Petition is from that order.