SHANKAR LAXMAN KATKAR Vs. SHARAD MAHADEO VABLE

JUDGEMENT

(1.) This Special Civil Application has been filed by the original judgment-debtor against the original decree-holder (viz. respondent No. 1) and the auction- purchaser (viz. respondent No. 2) for setting aside the judgment and order dated 3rd March 1971 passed by the learned District Judge, Ahmednagar, in Civil Miscellaneous Appeals Nos. 6 and 8 of 1970.

(2.) On 7th November 1968, in Regular Civil Suit No. 29 of 1966, a decree was passed by the learned Civil Judge, Junior Division, Ahmednagar, against the petitioner and in favour of the 1st respondent for possession of a certain strip of land with a structure thereon and for costs in the sum of Rs. 256.15. We are not concerned with the strip of land or structure thereon. On 6th December 1968, the 1st respondent filed a darkhast for possession and recovery of the costs by the sale of certain other lands belonging to the petitioner. On 12th August 1969, during the pendency of the darkhast, the petitioner deposited Rs. 100/- in Court towards the payment of costs. On 13th August 1969, the auction sale was held. The 2nd respondent was declared to be the highest bidder for Rs. 1,201/- and the petitioner's ;and was sold to him. On 3rd September 1969, the petitioner filed one application in the Court of the Joint Civil Judge, Junior Division, Ahmednagar, being Miscellaneous Application No. 142 of 1969, for setting aside this sale under the provisions of Order 21, Rules 90 and 89 of the Code of Civil Procedure. In this application, the petitioner stated that he had deposited Rs. 100/- on 12th August 1969 and offered to deposit the balance amount of Rs. 230/-. This the petitioner did the next day, namely on 4th September 1969, in the executing Court. On 18th December 1969, the petitioner filed a purshis giving up the relief sought for by him under Order 21, Rule 90 and restricted his relief to Order 21, Rule 89. By his judgment dated 19th December 1969 in Miscellaneous Application No. 142 of 1969, the learned trial Judge set aside the auction sale. Against that judgment, the 2nd respondent, namely the auction purchaser, preferred Miscellaneous Civil Appeal No. 6 of 1970 and the 1st respondent, namely the original decree-holder, preferred Miscellaneous Civil Appeal No. 8 of 1970 before the learned District Judge, Ahmednagar, who, by a common judgment and order dated 3rd March 1971, allowed the appeals, set aside the order of the trial Court and confirmed the auction sale. The learned District Judge held that though the amount was deposited by the petitioner within 30 days from the date of the auction sale, it was not so done at the time of the filling of the application, and hence the provisions of Order 21, Rule 89, were not complied with. He also held that the petitioner's application was barred by the law of limitation. Hence the present Special Civil Application.

(3.) Mr. Pendse, the learned counsel appearing on behalf of the petitioner, attempted to assail the judgment and order of the learned District Judge on the sole ground that the petitioner's application under Order 21, Rule 89 could not be said to be barred by the law of limitation.