ASHOK Vs. DEORAO & ANR.

JUDGEMENT

(1.) The original judgment-debtor by this revision has questioned the legality of order dated 16-9-88 passed by the Executing Court, confirming the auction sale.

(2.) The non-applicant no. 1 Deorao filed a suit for recovery of Rs. 2200.00 against the applicant and obtained a decree. In execution, the land was attached and on 23-11-87 put to sale by auction. The non-applicant no.2 Vithalrao is an auction-purchaser. According to the judgment-debtor, on 1-12-1987, he has deposited the decretal amount, cost and also Rs. 138.00 as a commission of the auction purchaser. The auction purchaser on 31-1-1988, applied for confirmation of sale. According to him, the judgment-debtor has not applied under the provisions of Order 21 Rule 89 of the Code of Civil Procedure for setting aside the sale and has also not deposited the amount of commission at the rale of five per cent of sale price of Rs. 11000.00 which comes to Rs. 550.00. Upholding the contention, the Executing Court by the impugned order confirmed the auction sale.

(3.) Mr. Labde tried to assail the impugned order of Confirming the sale. It is not disputed that the judgment-debtor has not filed any application under Order 21 Rule 89 of the Code. However, in the submission of Mr. Labde, the application for permission to deposit the amount itself by necessary implication also involves the claim of setting aside auction sale. It is contended that want of separate application as such does not bring any informity in the claim of the judgment-debtor for a relief to set aside auction sale. In support of his submission, Mr. Labde placed reliance on a decision reported in Behari Lal Vs. Gopal Krishna Pathak, AIR 1972 Patna 847. His Lordship has observed that the prayer by the judgment-debtor in his application to the Executing Court to grant challan to deposit balance of decretal amount, involves a prayer for setting aside the sale as contemplated under Rule 89.