BANSILAL KANCHHEDILAL Vs. HUKUMCHAND KHUNNELAL

JUDGEMENT

(1.) This is an appeal under Clause (15) of the Letters Patent from the judgment of Badkas, J. The appeal arises under the following circumstances: The two appellants who were originally judgment debtors were members of the Vidarbha Premier Co-operative Housing Society, Ltd., Nagpur, respondent No. 2. They created a mortgage of their property in favour of respondent No. 2 on 16-10-1950. The amount due under the mortgage was not paid and the matter, was referred to the Registrar of Co-operative Societies under the Cooperative Societies Act, 1912, as applied to Madhya Pradesh. Under Rule 27 of the rules made by the State Government under the Act, the Registrar had authority cither to enquire into the matter himself or refer it to arbitration. He decided the matter himself and made an order on 1-5-1957 that the judgment-debtors do pay a sum of Rs. 9,412/6/9 and interest at 12 per cent, per annum from 1-8-1953 till satisfaction of the debt to the respondent Society. He further directed that it he did not pay the amount in cash to the Society, the property mentioned therein shall be brought to sale for satisfaction of the amount, if the money realized by the sate of the mortgaged property proved insufficient and the debt remained unsatisfied, he provided that the Society shall have a right to proceed against the judgment, debtors and their movable and immovable property. The rest of the decree is not material to the present discussion. The judgment-debtors did not pay the amount as directed by the decree of the Registrar and the Society therefore made an application to the Civil Court for recovery of the amount under the decree. In the execution proceedings, the property of the judgment-debtors was brought to sale. The sale was held on 7-4-1958 when the bid was knocked down in favour of respondent No. 1.

(2.) On 3-5-1958 the judgment-debtors made an application under Order 21, Rule 90 of the Code of Civil Procedure for setting aside the sale. On 7-10-1958 at the hearing of this application, the judgment-debtor made an application for a month's time to deposit the decretal amount and expressed their desire to withdraw their application then pending. To this application the decree-holder and the auction-purchaser did not object. The Court therefore granted time for deposit of the amount till 21-11-1958 and the main application under Order 21, Rule 90, was allowed to be withdrawn and was dismissed.

(3.) A day previous to the date fixed for payment, i.e. on 20-11-1958, the judgment-debtors made an application for acceptance of the deposit of a sum of Rs. 11,326/3/6 towards the mortgage amount and an additional sum of Rs. 1275/- being the commission of the auction-purchaser and prayed for further time for deposit of the balance. This application was rejected by the learned Judge. On the next day, i.e. on 21-11-1958 the learned Advocate appearing on behalf of the judgment-debtors asked for extension of time to which the respondents raised an objection. The request was therefore not granted, and since the application under Order 21, Rule 90, stood dismissed the Court confirmed the sale.