AZIZUL REHMAN Vs. IXTH ADDL DISTRICT JUDGE MORADABAD

JUDGEMENT

(1.) THIS petition, under Article 226 of the Constitution of India, is directed against the order and judgment dated 6th September, 1984, passed by the IX Addl. District Judge, Moradabad, in Civil Revision No. 45 of 1984, arising out of the Execution Case No 16 of 1983, setting aside the judgment and order dated 24th November, 1983, passed by the executing court whereby it declined to set aside the sale of a Kothari in favour of the decree-holder, the petitioner) before this Court.

(2.) THE relevant facts, as they emerge from the pleadings in the petition and the judgments of the executing court and of the learned Addl. District Judge, are these.

(3.) ON 26th September, 1983, one of the judgment-debtors, namely, Abid Ali, moved an application informing the executing court that the entire decretal amount had been deposited in the court and praying for setting aside of the sale of the Kothari and dismissal of the execution application. A copy of this application is to be found on record before this court as Annexure-3 to the petition. The application does not disclose the date of making the requisite deposit under Rule 89 of Order XXI of the Code. However, from the narration of the facts in the impugned judgment, the date of deposit appears to be 26th September, 1983. To the application of the judgment-debtors the petitioner-decree-holder filed an objection dated 19th October, 1983, a copy where of is IT Annexure to the petition. The petitioner pleaded that the sale of the Kothari, having already been confirmed on 24th September, 198B, could not be set aside. Alternatively, it was submitted that the requisite deposit was not made within thirty days which was a condition precedent under Rule 89 read with Rule 92 of Order XXI of the Code