PARWVTIBAI Vs. LAXMI DEVI

JUDGEMENT

(1.) THIS revision under section 115 of the Code of Civil Procedure is directed against a reversing order dated 23 March 1968 passed in appeal under Order 43, rule 1 (j) of the Code whereby, differing from the executing court, the Second Additional District Judge, Sagar, dismissed an application for setting aside an auction sale under Order 21, rule 89 of the Code on the ground that it did not fulfil the requirements of that provision.

(2.) THE material faces which are no longer in dispute are these. Narmada prasad (non-applicant 11) obtained against Shrichand and 7 others (non-applicants 3 to 10) a money decree for Rs. 2,868/9/- and costs. In execution of that decree, the house in dispute belonging to the non-applicants 3, 4 and 5 was put to sale by public auction on 7 October 1959 and it was purchased by dr. Laxmi Devi and Ramcharan (non-applicants 1 and 2) for a sum of rs. 65,100/ -. The decretal amount had, however, been paid to the decree-holder on 1 October 1959 and, on 10 October 1959, when the decree-holder and the judgment-debtors were present, the receipt dated 1 October 1959 showing full satisfaction of the decree was filed. In view of full satisfaction of the decree, the executing Court, by its order dated 14 October 1959, set aside the sale, directed that one fourth of the sale proceeds deposited by the auction-purchasers be refunded and dismissed the execution application as fully satisfied. The auction-purchasers, however, applied for review of the order setting aside the sale and that was allowed by the executing Court on 4 December 1959. Two successive appeals against the order pissed in review were dismissed. In the order passed by this Court in Shrichand v. Mohanlal (1963 M P L J Note 58=misc. (second) Appeal No. 7 of 1962, decided on the 25 th April 1962.)T. C. Shrivastava J. took the view that the uncertified adjustment could not be taken notice of to the prejudice of the auction-purchaser and the case must be decided on the basis of that position.

(3.) THE judgment-debtors had filed on 6 November 1959 an application under Order 21, rule 90 of the Code, but it was dismissed in default on 26 July 1960.