MANICKA GRAMANI Vs. V VENKATESWARA IYER

JUDGEMENT

(1.) THE legal representative of the deceased judgment-debtor in O. S. No. 6757 of 1973, 10th Assistant Judge, City Civil Court, Madras, is the appellant in this appeal. THE property bearing door No. 205, Arcot Road, Vada Palani, Kodambakkam, Madras belonged to the family of the appellant and respondents 1 and 2 in execution of the decree obtained by them in O. S. No 6757 of 1975, brought the property to sale in E. P. No. 2336 of 1976 and the third respondent purchased the property in the sale held on 22nd November, 1978. for a sum of Rs. 56,250 THE third respondent had also deposited, according to the appellant, 25 per cent of the sale consideration on 23rd November, 1978. THE appellant further stated that out of the amount due to the decree-holder mentioned in the sale proclamation, a sum of Rs. 6,5)0 in instalments of Rs. 5,000 and Rs 1,500 had been paid after the E. P. and therefore, the amount due to the decree-holder as on the date of sale was only Rs. 19,500 Claiming that he had deposited a sum of Rs. 19,500 together with a sum of Rs. 2812 50 representing 5 per cent of the sale consideration paid by the court-auction-purchaser and a further sum of Rs. 677.50 to cover the expenses of sale, totalling in all to Rs. 23,000, the appellant filed the application under Order 21, rule 89 of the Code of Civil Procedure, to set aside the Court sale held on 22nd November, 1978 THE appellant had also expressed his willingness to deposit some more amount if found due, though he had stated that he had paid into Court a sum of Rs.23,444.

(2.) THE decree-holders viz., respondents I and 2 herein made an endorsement that they have no objection for the sale being set aside as the decree amount Jus been deposited into Court. THE application was resisted only by the third respondent herein on the ground that the application had neither been filed in time nor the correct amount deposited.

(3.) IT is necessary at this stage to deal with an objection raised by the learned counsel for the 3rd respondent to the effect that the petition is barred by limitation. IT is not disputed that the sale of the property was held on 22nd November, 1978. The objection that is raised by the third respondent is that the petition had been filed on 6th January, 1979, and therefore, the application is barred. The other objection that is raised in this connection is that the deposit of the amount was made on 27th February, 1979, long after the filing of the application and consequently, there was no deposit within time as contemplated in an application under Order 21, rule 89, Civil Procedure Code. A perusal of the application filed by the appellant under Order 21, rule 89 shows that the petition had been signed on 21st December, 1978 and, it also bears the Court's seal for having been presented into Court on 21st December, 1978. Therefore, there is no substance in the objection of the third respondent that the petition was filed only on 6th January, 1 79, and consequently, it is barred. With reference to the objection that there was a delayed deposit of the amount into Court, it is found from the records that a sum on Rs 23.000 had been deposited into the Reserve Bank of India on 22nd December, 1978, and that chalan had also been produced before the City Civil Court, Madras but that the amounts so paid had been given credit to on 27th February, 1979, after verifying the payment made into the Reserve Bank of India, Madras. IT is, therefore, obvious that the payment had also been made within 30 days from the date of sale Consequently, it is not open to the third respondent to raise the objection that the application and the payment were made out of time.