MARUTI SHIDALAPPA Vs. SHIVAPPA MALLAPPA CHAUGULE

JUDGEMENT

(1.) THIS second appeal has been filed by a judgment-debtor whose property, consisting of an agricultural land, was sold in Court auction in execution of a money decree passed against him. The auction sale took place on 30th January 1961 when the property was purchased by respondent No. 2 for Rs. 2,100. Before the auction sale was confirmed, and within 30 days of the auctionsale, the judgment-debtor paid in Court on 28th February 1961 the full amounts which were required to be paid under Order 21, Rule 89 of the Civil Procedure Code for having the sale set aside. On the Same day (18th February 1961) he filed in Court a Purshis (Exhibit 35) in which he stated that he had deposited the amount of Rs, 1,180 and odd, which was mentioned in the proclamation of sale, for the purpose of having the amount handed over to the decree-holder, that he had also deposited an amount of Rs. 105 for being given by way of compensation to the auction pruchaser as the purchase price was Rs. 2,100, and that the amounts deposited by him should be accepted and that a receipt therefor should be given to him. No formal application for setting aside the sale was filed by the judgment-debtor. It appears however, that in view of the Purshis filed by the Judgment-debotr the Court issued to him a notice to show cause why the sale should not be confirmed. In response to this notice the judgment-debtor filed an application (Exhibit 40) on 27th March 1961 in which he prayed that his Purshis exhibit 35 should be treated as an application under Order 21, Rule 89 of the Civil Procedure Code to set aside the sale. The executing Court rejected this application, confirmed the auction sale and directed that the amounts deposited by the judgment-debtor should be returned to him. This order was confirmed by the Assistant Judge of Kolhapur on an appeal taken by the judgment-debtor. The decisions of the Courts below have been challenged in this second appeal

(2.) DEALING with the case apart from authority it will be noticed that Order 21, Rule 89 requires that certain amounts specified in that provision should be deposited incourt and also that an application should be made to have the sale set aside. Article 166 of the first Schedule of the Limitation Act of 1908 laid down that an application under Order 21, Rule 89 must be made within 30 days from the date of sale. Although, however, the terms of Order 21, Rule 89 require an application to be made for having the sale set aside, nothing is stated in that rule regarding the mode in which such an application should be made. It must follow that a judgment-debtor, who makes the requisite deposit in Court, and further makes a request to the Court in any form that the auctionsale be set aside, complies with the requirements of Order 21, Rule 89.

(3.) NOW the contention of the judgment-debtor in the present case is, and from the begining has been, that his Purshis exhibit 35 clearly iomplies a request to the Court to set aside the auction sale, and that therefore the Purshis should be treated as an application under O. 21, R. 89. A perusal of the Purshis exhibit 35 shows that it does contain a request, either by express words or by clear implication, that the amount of Rs. 1,180 and odd deposited by him should be paid to the decree-holder, that being the amount specified in the proclamation of sale, and that the amount of Rs. 105 deposited by him should be paid by way of compensation to the auction purchaser, since the amount of his purchase price was Rs. 2,100. Now it is clear that these amounts could be paid to the decree-holder and the auction purchaser respectively only after setting aside the auction sale. If the auction sale was not to be set aside, no question could have arisen of the judgment-debtor paying the amount mentioned in the proclamation of sale to the decree-holder and an amount by way of compensation to the auction purchase. It follows that a request for setting aside the auction sale is clearly implicit in the words used in the Purshis exhibit 35.