PRATAP KISHORE PATNAIK Vs. RAMA CHANDRA PATRA

JUDGEMENT

(1.) IN S. C. Suit No. 14 of 1954 there was an ex parte decree against defendants 1 and 2. The decree was put into execution and the disputed property was sold for rs. 240/- on 16-1-68. Defendant No. 2 filed an appeal before the District Judge contending that the disputed property was not liable to sale as it belonged to him and he was not personally liable under the decree. On 12-2-68 defendant No. 2 claims to have filed an application under Order 21, Rule 89 C. P. C. for setting aside the sale and to have filed a chalan for depositing the money. On that very day an order for interim stay of further proceeding in Execution Case No. 129 of 1966, in which the disputed property had been sold, was passed by the District judge. On 13-2-68 the executing court received intimation of the order of stay. On 17-1068 misc. Appeal No. 51 of 1968 was dismissed by the District Judge. On 22-10-68, judgment-debtor No. 2 (petitioner) filed an application intimating the executing court that the appeal had been dismissed and as the chalan had already been filed the required money may be permitted to be deposited. The executing court kept this matter pending till 26-10-68. On 31-10-68 the executing court received intimation of the result of the appeal which amounted to vacating the stay order. On 8-11-68 the prayer for depositing under Order 21, rule 89 C. P. C. was rejected. Against this order, the Civil Revision has been filed. On 6-12-68 a stay order was passed by this Court subject to the condition that the decretal dues with costs would be deposited. The same was complied with on 112-68. The learned executing court rejected the application for depositing the money on the ground that the application dated 12-2-68 was a conditional one and as Order 21. Rule 89 C. P. C. did not permit conditional deposit, the application was not maintainable.

(2.) MR. Mohapatra contends that a perusal of the application dated 12-2-68 would dearly show that the deposit was not conditional. Mr. Mukherjee, on the other hand, contends that on 12-2-68 the petitioner did not tender any chalan, and even if he did so, it was not filled up properly and as such it was not a valid tender.

(3.) THE first question for consideration is whether the chalan filed by defendant No. 2, which was used for depositing the money, directed under the stay order passed by the High Court, had been filed on 12-2-68 with the object of depositing the money under Order 21, Rule 89 C. P. C. The order sheet of that day does not contain any statement that such a chalan was filed. The chalan however bears the date "12-2-68". The application dated 22-10-68 contains a clear recital that a chalan had been filed earlier by defendant No. 2, There is no other chalan in the record excepting one bearing the date 12-2-68. Moreover the decree-holders did not raise any objection in the court below calling for a finding from the executing court that no chalan was filed on 12-2-68. On the aforesaid consideration. I am inclined to hold that such an objection that no chalan was filed on 12-2-68 cannot be allowed to be agitated for the first time in this Court, and even if such a contention is raised one has to accept the position that it was filed on 12-2-68 in view of the recital in the application dated 22-10-68.