DAMODARAM Vs. P MARK

JUDGEMENT

(1.) The 2nd respondent herein obtainted a decree in OS No 114/69 for a sum of Rs 2,000/- and odd and filed Execution Petition No 322/1972 against the judgment-debtor 1st respondent herein. The property consisting of a house site belonging to the judgment-debtor was told in auction held on 29-8-1970. The petitioner, herein purchased the same for a cum of Rs. 35,300/- and he deposited the said amount in the Court. Subsequently, i.e., on 24-9-73 that 1st respondent herein (judgment-debtor) deposited a sum of R.5. 5,832/- towards the sale warrant amount plus poundage plui 5 per ceat commission in full satisfaction of the claim ot the Decree-holder and filed E.A. No 512/73 oa 28-9-l973 under order 21, Rule 89 C.P.C. for setting aside the sale.

(2.) The decree-holder opposed the said application taking several objection. The auction-purchaser also opposed the said applications with objection similar to those taken by the decree-holder.

(3.) The learned District Munsif rejected all the objections raised by the decree-holder as well as the auction-purchaser and allowed E A. No. 512/73 setting aside the sale held on 28-9-1973. Aggrieved with the order passed in E.A. No. 512/73, the auction-purchaser prefcired an appeal A.S. No. 199/74 in the District Court. Visakhapatnam. The ground on which the order of the District Munsif was assailed before the learned District judge was that the amount deposited by the judgment-debtor is not unconditional since the self-same judgment-debtor filed I. A.No. 13/74 in I.P. No. 11/73 in the Court of the Subordinate Judge with a request that the amount lying in the Court deposit, to the credit of E.P.No. 322/72 should be sent for and should be made available to the general body of the creditors for rateable distribution and as the deposit made by the judg ment-debtor cannot be said to be unconditional, the sale cannot be set aside.