DADA NARAYAN THAKRE Vs. JAICHAND NAGORAO

JUDGEMENT

(1.) THIS is a judgment-debtor's appeal from an order arising out of execution proceedings.

(2.) THE decree-holder Yeshwantrao (respondent No. 2) obtained a decree for money against the appellant. In execution of that decree occupancy field No. 129 of mouza Chichala, tahsil Wardha, was attached and was eventually sold; the auction-purchaser thereof being respondent No. 1. The auction sale, it may be mentioned, was held on 17-3-1952 and was confirmed on 12-4-1952. On 24-6-1952, the appellant made an application under Section 47 of the Code of Civil Procedure on the ground that the sale was effected without service of notice on him under Order 21, Rule 66 (2) of the Code. The appellant also stated in that application that though notice of sale was ordered to issue to him by the Court it was actually not served on him though the process-server had made a false report to the effect that the appellant had refused to accept the service. The executing Court upheld the appellant's contention and set aside the sale.

(3.) IN appeal, the learned Additional District Judge, Wardha, held that the application of the appellant fell within Order 21, Rule 90 and that as it has not been made within thirty days of the date of sale it was barred by time. The question therefore is whether the application of the appellant was under Order 21, Rule 90 or was under Section 47 of the Code of Civil Procedure.