DEVINENI DURGAMBA Vs. RAJ KUMAR FINANCIERS VIJAYAWADA

JUDGEMENT

(1.) The present C.M.A. is filed by the Judgment Debtor/4th defendant aggrieved by the order of the learned Principal Subordinate Judge, Tenali in E.A.No. 291/1991 in E.P.No. 32/1987 in O.S.No. 587/1983 dated 16-7-1997.

(2.) The plaintiff filed suit for recovery of the amount and obtained a decree.In execution of the said decree, the landed properties belonging to the Defendants were brought to sale and auction was held on 4-4-1991 for a sum of Rs. 82,000/-. It is the case of the Appellant that she deposited the amount into the Court on 3-6-1991 and filed an application under Order XXI Rule 89 read with Section 151 of C.P.C. for setting aside the sale of her property held on 4-4-1991. It is also her case that the Court was closed for summer vacation from 27-4-1991 to 2-6-1991 and therefore the application to set aside the sale was filed on 3-6-1991 i.e., on reopening day and therefore the application was within time. The application was resisted by the Decree Holder stating that the deposit ought to have been made within 30 days from the date of the sale and therefore there was non-compliance of Order XXI Rule 92(2) C.P.C. The lower Court after considering the respective contentions held that deposit ought to have been made within 30 days from the date of the sale irrespective of the closure of the Court for summer vacation and since the deposit was made beyond 30 days, the application was dismissed. Aggrieved by the said order, the present Appeal has been preferred by the Judgment Debtor.

(3.) The learned Counsel for the Appellant submits that the lower Court has not correctly construed the provisions of Order XXI Rule 89 and also Rule 92(2) of C.P.C. with reference to the Section 4 of the Limitation Act. He further submits that the application was made on 3-6-1997 (sic. 1991), the reopening day of the courts after summer vacation, along with the challan for the auction amount. Even though the deposit is made beyond 30 days, yet since the application has been filed within time i.e., 3-6-1997, it has to be construed that the deposit is also made within the permissible limitation and hence he submits that the order of the lower Court is liable to be set aside. He also relied on the following decisions: Durga Prasad vs. Babu Lal, Mst. Hirania vs. Sm. Ram Piari, Jagu Anyaba Adhav vs. Bajran Auba Jadhav.