LALA RAM AND ANR. Vs. BHAJANI

JUDGEMENT

(1.) Lala Ram applicant No. 1 obtained a simple money decree against Bhajani, opposite party. In execution of the decree, some Bhumidhari land of the Judgment -debtor was attached. On May 25, 1963, the Munsif (executing Court) ordered the issue of the sale proclamation, fixing September 14, 1963, for the sale. On May 27, 1963, the warrant of sale was issued, directing the Amin to sell the attached property by auction. The Amin was directed to return the warrant by September 16, 1963, with an endorsement certifying the manner in which it had been executed. The Amin held the auction on September 14, 1963. The highest bid of Girraj applicant No. 2 of Rs. 1,200/ - was accepted by the Amin and on the same date, Girrai deposited with the Amin a sura of Rs. 300/ -. being 25 per cent of the purchase money. The Amin then returned the warrant together with his report to the Munsif and on September 16, 1963, the Munsif passed an order "bid is approved". On October 15, 1963, the judgment -debtor filed an application under Order XXI. Rule 90 of the Code of Civil Procedure to set aside the sale. On November 6, 1963, the Munsif dismissed the application as time -barred, holding that it had been filed beyond the period of limitation of 30 days from September 14, 1963, the date of the sale. Two days later, on November 8, 1963, the Munsif passed the following order: - -

(2.) The real question, which arises for consideration in this case, is whether the date of the sale is September 14, 1963, when the Amin auctioned the attached property, or September 16, 1963, when the Munsif approved the bid. Under Article 166 of the Limitation Act of 1908, limitation for making an application under Order XXI, Rule 90 is 30 days from "the date of the sale". Admittedly, the application filed by the judgment -debtor is beyond 30 days from September 14, 1963, but within 30 days from September 16, 1963. In allowing the appeal, the District Judge has observed: - -

(3.) Learned counsel for the judgment -debtor has contended that, as a matter of law, the sale was completed only when the Munsif approved the bid and, therefore, it is the date of the approval of the bid by the Munsif which is the date of the sale. In support of his contention, he has placed reliance upon several reported decisions. In all these cases. Order XXI, Rule 84 C.P.C. came up for consideration. This rule reads: