KANTILAL NAGJIBHAI SHAH Vs. TARABEM OCCHAVLAL SHAH

JUDGEMENT

(1.) The petitioner is the judgment debtor who has challenged the judgment and order passed in Regular Civil Appeal No. 3 of 1991 on 2 October 1993 by the learned District Judge at Baroda in Misc. Civil Appeal No. 3 of 1991.

(2.) Regular Civil Execution Petition No. 165 of 1991 was filed in the court of learned Civil judge (J.D.) at Sinor by the respondent No. 1 - Taraben Ochhavlal Shah against deceased Kantilal Nagjibhai Shah to recover an amount of Rs. 5 209.34 Ps. wherein immoveable properly in the said execution petition was ordered to be auctioned as per the provisions of Civil Procedure Code. In the said application respondent No. 2 Vasantlal Ambalal Soni had taken part as an Auction Purchaser. He had given highest bid of a sum of Rs. 46 200 and deposited the said amount in the trial court between 3rd July 1986 and 29.7.1986. The original judgment-debtor deceased Kantilal had filed application Ex. 27 for stay of the execution proceedings. Respondent No. 2 filed an application Ex. 29 and prayed for execution of the sale deed for which aforesaid amount was deposited in the court. Objections were raised by the judgment-debtor against the auction. After hearing the parties executing court passed the order on 31 December 1990 dismissing the application filed by the judgment debtor and allowed the application filed by respondent No. 2 - Vasantlal Ambalal.

(3.) Being dissatisfied by the said order the petitioner had filed Civil Misc. Appeal No. 3 of 1991 under Order 43 Rule 1 Civil Procedure Code in the District Court at Baroda who allowed the appeal by the order dated 22nd October 1992 directing the trial court to issue fresh proclamations under Civil Procedure Code with other appropriate directions for proceeding with the matter. In that appeal while passing the said order the learned District Judge has also directed that the auction purchaser should be refunded an amount of Rs. 46 200 with interest at the rate of 12%. He found that auction purchaser deposited the said amount on 9.7.1986 and it remained in court without any interest and he has suffered damages and therefore judgment debtor should be saddled with the liability of interest. The District Court therefore passed the direction in the said appeal while setting aside ale proclamation proceedings and to refund amount of Rs. 46 200 and further directing the judgment debtor to pay interest at the rate of 12% from 29.7 till date of realisation. Being aggrieved by said direction against the judgment debtor this revision is filed by the petitioner judgment-debtor under Sec. 115 of the Code.