VIJAY KUMAR AND ORS. Vs. DHARAMDAS AND ORS.

JUDGEMENT

(1.) This is a petition under Art. 227 of the Constitution against the orders of the Courts below rejecting the petitioners judgment debtors application under Order 21, Rule 89, C.P.C., for setting aside the sale on deposit of the decretal amount.

(2.) The petitioners Nos. 1 to 3 and one Laxmichand were partners of the registered firm, M/s Babulal Hukumchand, petitioner No. 4) doing business at Kami. Laxmichand died on 11-11-1986 and his legal representatives did not take any steps for being brought on record. In the civil suit (C.P. No. 1-B of 1981) respondent No. 1 (decree-holder) got a decree for Rs. 14,552.36 with future interest against the petitioners and Laxmichand on 15-9-1981. In execution of that decree, respondent No. 1 got attached a house belonging to the petitioners in Raghunathganj ward, Batni. A proclamation of sale was issued that the house has to be sold for realisation of the decretal amount of Rs. 14,552.36. It appears that the sale proceedings continued from 2-5-1983 as the proper price was not fetched and finally on 4-7-1983, the bid of Rs. 2,00,000.00 of respondent No. 2, auction-purchaser was accepted. He deposited 1/4th of the amount, with the permission of the executing Court on 5-7-1983 and the balance amount of Rs. 1,50,000.00 was deposited on 15-7-1983. On 20-7-1983, the deceased Laxmichand made an application for setting aside the sale under Order 21, Rule 80 C.P.C. on behalf of all the judgment-debtors. However, on 30-7-1983, his counsel, Shri S.P. Sinha, withdrew the objection and filed an application under Order 21, Rule 89, with deposit of Rs. 15,000.00 towards the decree and Rs. 10,000.00 towards 5 per cent commission, payable to the auction purchaser under die rule along with the application. There were other decrees also against the petitioner and one decree-holder Sunderlal Sharavgi filed an application in the executing Court on 25-6-1983, under Sec. 73 of the Code for rateable distribution, saying that he has a decree of Rs. 5,872.00 against the petitioners. Another decree-holder Govind Das also filed a similar application on 8-7-1983 for rateable distribution, saying that he has a decree for Rs. 6,824.50. The third decree-holder, National Textile Mills filed similar application on 18-7-1983 for rateable distribution, it having a decree of Rs. 66,227.60. Therefore, these decree-holders also opposed the application under Order 21, Rule 89, filed by the petitioners. The executing Court dismissed the application, saying that the entire decretal amount was not deposited, inasmuch as the amount of interest and the execution cost came to Rs. 262.00 and the amount of Rs. 25,000.00 was deposited on 11-8-1983 beyond days of limitation. Further, the sale could not be set aside by prejudicing the case of the other decree-holders. The petitioners then preferred 2nd appeal and the Additional District Judge dismissed the appeal, saying that Shri S.P. Sinha was not authorised to withdraw the application under Order 21, Rule 90 C.P.C. and, therefore, the application under Order 21, Rule 89 C.P.C. was not competent. One of the judgment-debtors, Laxmichand, who was not interested in the house in question had deposited an amount of Rs. 25,000.00 on 25-7-1983 and so this deposit is of no avail to the other judgment-debtors, he having himself not joined in the application under Order 21, Rule 89 C.P.C. The application under Order 21, Rule 89 cannot be decided liberally, when 'acre are other decree-holders seeking recover, of their dues. The judgment-debtors were participating in the auction sale but they failed to deposit the full decretal amount in time. The various objections filed by one Indrani Babu and the judgment-debtors were not legally and properly withdrawn.

(3.) After having heard the parties on merits, we are of opinion that this petition has to be allowed because there is an error apparent on the face of the record. Learned counsel for the respondents Nos. 1 and 2 relied on a decision of the Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim, AIR 1984 SC 38, wherein was held that a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art. 227 and does not empower it to review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based. The High Court has only to see that the inferior Court or tribunal functions within the limits of jurisdiction. Under Order 21, Rule 89, C.P.C., where immovable property has been sold in execution of a decree, any person claiming an interest in the property sold, at the time of sale of at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside, on his depositing tor payment to the purchaser, a sum equal to 5 per cent of the purchase money and for payment to the decree-holder the amount specified in the proclamation of sale. Therefore, if these conditions are fulfilled, the executing Court has no jurisdiction to reject the application. The application under Order 21, Rule 89, C.P.C., was moved by petitioners Nos. 1 and 2 on the behalf and on behalf of petitioner No. 3. The amount was also deposited by them along with the application. Receipt was issued in the first name of the parties, i.e., Laxmichand, showing that the amount has been deposited by Laxmichand. The lower appellate Court did not make any enquiry as to who deposited the amount, but was carried by the recital of the receipt, issued in the name of Laxmichand. Undoubtedly, the attached h use was purchased by petitioners Nos. 1 to 3 anti copy of the sale deed has been produced so that they had interest in the property and they could make an application under Order 21, Rule 89. They were required to deposit the amount mentioned in the proclamation of sale, i.e., Rs. 14,552.36, which was deposited by them along with the application on 30-7-1983, i.e., within 30 days of the sale. As has been in Laxman Singh Vs. Laxminarayan Deosthan, AIR 1948 Nag. 127 this deposit was sufficient compliance to this rule. Since an objection was taken by the decree-holder that the interest payable under the decree and execution cost have not been deposited, further amount of Rs. 2,500.00 was deposited by the petitioners on 11-8-1983, i.e. beyond 30 days. This deposit has been taken to be invalid by the executing Court, as it was not mace within 30 days, as required under Rule 80 and Rule 92. Even non-deposit of this amount was not of any consequence, because the petitioners had deposited the amount mentioned in the proclamation of sale and they were not required to deposit anything more. However, the law is now well settled by the Supreme Court in Basavantappa Vs. G.N. Dharwadkar, AIR 1987 SC 53, that limitation for making an application for depositing the amount is 60 days, as provided by Art. 127 of the Limitation Act, which should prevail, although under Order 21, Rule 92, the period mentioned is 30 days. The inconsistency has been pointed out arid suggested to be removed. As such, the second deposit was within time, being within 60 days. Therefore, the petitioners had fulfilled all the conditions of Order 21, Rule 89, and the sale should have been set aside.