GOVERDHANDAS KANHAYALAL BHATE Vs. RANCHHODDAS BHIKHARILAL SHET BHATE

JUDGEMENT

(1.) THIS is an appeal filed by the judgment-debtor against the order dismissing Ins application to set aside the sale under Order XXI, Rule 89. The facts of the case are briefly these. The plaintiff obtained a mortgage decree and filed Darkhast No.110 of 1944 to execute the decree. That decree was transferred to the Collector for execution. On May 11, 1946, the decree-holder purchased the property for Rs. 18,250. On June 3, 1946, the defendant-judgment-debtor applied to the Collector to set aside the sale under Order XXI, Rule 90, and on June 8, 1946, the judgment-debtor entered into an agreement with one Dhondiram for the sale of the property which had been sold in execution. One of the conditions was that Dhondiram was to deposit Its. 19,500 in Court. THIS amount was deposited by Dhondiram on June 8, 1946, on behalf of the judgment-debtor. Then the judgment-debtor made the present application for setting aside the sale under Order XXI, Rule 89.

(2.) THE decree-holder contended that it is not competent to the judgment-debtor to file an application under Order XXI, Rule 89, as the amount is not deposited by him, and secondly, he contended that when an application under Order XXI, Rule 90, is pending, it was not competent to the judgment-debtor to make another application under Order XXI, Rule 89. Both these contentions found favour with the trial Court, with the result that the application to set aside the sale stands dismissed. Against this order the defendant-judgment-debtor has come in appeal.

(3.) THERE is another decision of the Sind Court in Rughunath Jethabhai v. Hariram Dipchand [1940] A. I. R. Sind 181 which supports this view. It is a decision of a division bench consisting of Davis J. C. and Weston J. Here a composite application was made for setting aside the sale both under Order XXI, Rule 90, and under Order XXI, Rule 89. But the prayer for setting aside the sale under Order XXI, Rule 90, was mentioned first. The prayer to set aside the sale under Rule 90 was supported by detailed allegations of irregularity, and the application further contained a prayer that it is only after the Court has refused to set aside the sale under Rule 90, it should consider the application under Rule 89. The application under Rule 90 was therefore considered to be made first and that was not withdrawn till February 23 when the learned advocate for the judgment-debtor abandoned his first prayer for relief under Rule 90. Then it was argued that the application for setting aside the sale under Rule 89 was already there and the Court should proceed with it. This contention was negatived and the Court held that "rule 89 prohibits the making or prosecution of an application under Rule 89 unless a previous application under Rule 90 has been withdrawn, and as it prohibits the making, so it excludes an application already made. " THEREfore the application under Order XXI, Rule 89, was not at all taken into consideration. This decision shows that the application made under Rule 89 when the application under Rule 90 was pending was not regarded as a valid application which could be taken into consideration. These two cases therefore support the construction which I am putting on Rule 89 (2 ).