LALTU SINGH Vs. BASUDEO

JUDGEMENT

(1.) D. C. Srivastava, J. This is judgment-debtors Second appeal against the order dated 9. 12. 77 of First Appellate Court confirming the sale held on 18. 10. 75.

(2.) THE brief facts are that a suit for recovery of money on the basis of pronote was filed by the respondent against the appellant which was decreed on 12. 12. 73. It was said to be an ex parte decree. No appeal was preferred nor any application for setting aside the ex parte decree was made. In execution of the decree, the property of the appellant judgment-debtor was sold on 18. 10. 75. THE plaintiff decree holder was the auction purchaser. THE defendant judgment debtor applied on 14. 11. 75 for setting aside the sale under Order XXI, Rule 89 C. P. C. and tendered the decretal amount plus 5% of the same including the amount mentioned in the sale proclamation. Subsequently it transpired this deposit which was made on 14. 11. 75 that is well within limitation of 30 days was found short of 5% of purchase money for being paid to the auction purchaser. An application was moved for depositing the deficiency and the same was allowed by the executing Court on 13. 12. 75. Time upto 20. 12. 75 was granted by the executing Court for depositing the deficient amount. Deficiency was made good by depositing the amount within the extended time.

(3.) THE first is that first appeal against the order dated 22. 12. 75 of the executing Court is not maintainable and was therefore incompetent. Attention was drawn to Order XLIII, Rule 1 C. P. C. In my view the contention cannot be accepted. Order XLIII, Rule 1 (j) C. P. C. provides for an appeal against an order under Rule 72 or Rule 92 of Order XXI, setting aside or refusing to set aside a sale. Order XXI, Rule 89 simply provides that where immovable property has been sold in execution of a decree (any person claiming an interest in the property sold at the time of the sale or at the time of making the application or acting for or in the interest of such person) may apply to have the sale set aside on his depositing in Court - (a) for payment of the purchaser, a sum to five per cent of the purchase-money; and equal to five per (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may since the date of such proclamation of sale, has been received by the decree-holder. This Rule 89 does not provide for automatic setting aside of sale. Sub-rule (2) of Rule 92 of Order XXI, C. P. C. reads as under:- " where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of sale (or in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale ). Provided that no order shall be made unless notice of the application has given to all persons affected thereby. "