DURGA PRASAD Vs. RAM LAKHAN

JUDGEMENT

(1.) SUDHIR Narain, J. The petitioners have challenged the order, dated 9-9-1994, passed by respondent No. 3, whereby the auction sale, dated 23-5-1985 has been set aside.

(2.) THE facts in brief are that Ramadhar, respondent No. 2 obtained a decree. He filed execution case No. 10 of 1983 against the judgment-debtor, respondent No. 1. After filing the execution application respondent No. 1 had deposited the decreetal amount in seven instalments and the last date of its payment was 26-6-1985. Before the last date of payment, no property of respondent No. 1 was auctioned on 23-5-1985. THE judgment-debtor-respondent No. 1 filed application (57-C) before the Executing Court stating that he had deposited the entire decretal and penalty amount, as provided under Order XXI, Rule 89, C. P. C. the auction sale should be set aside. Ho further prayed that the tender forms along with application already filed by him be treated application for setting aside the sale as required under Order XXI, Rule 18, C. P. C. THE petitioners filed objection to the said application. THE Civil Judge rejected the application on 21-4-1987. Respondent No. 1 filed Misc. Civil Appeal No. 150 of 1987 which has been allowed by respondent No. 3, holding that the judgment-debtor-respondent No. 1 complied with the conditions prescribed under Order XXI, Rule 89, C. P. C. and the auction sale dated 23- 5-1985 was liable to be set aside. This order has been challenged in this writ petition.

(3.) IN Mamood Khan v. Shaikh Mazid Hussain, AIR 1939 All 241, a Division Bench of this Court took the view that presentation of a form of tender for deposit of sale price and five per cent as required by Order XXI, Rule 89 to a Court for signature, must be deemed to be an application, not only for the deposit of the purchase money, but also to have the sale set aside and an oral or written application for setting aside the sale is not strictly neces sary. Although the form of tender does not use the actual words that the sale should be set aside but it is clearly the intention of a person presenting the form to a Court for signature that the deposit is being made for that purpose. The decision of Madras High Court in the case of Pachiayae (supra), was considered. The same view was followed in Kishan Lan v. Babuain Harden Kaur and another, AIR 1945 Oudh 45 and Mst. Hirania v. Smt. Ram Piari, AIR 1950 All 867. The Bombay High Court in the case of Marutishidalappa v. Shivappa Mallappa Chaugule and another, AIR 1967 Bom 39, followed the decision of Allahabad High Court, referred to above and distinguished the case of Pachiayae v. Vallimuthu Velam, AIR 1925 Mad 639 and Amrit Lal Narsi Lal v. Sadashiv, AIR 1944 Bom 233. It was held that filing of tender contains an implicit prayer for setting aside the sale and absence of formal application does not amount to a non-compliance of the provisions of Order XXI, Rule 89, C. P. C.