BHABANI DASYA Vs. TULSI RAM KEOT

JUDGEMENT

(1.) This is plaintiff's appeal against the judgment and decree dated 16-579 passed by the learned Assistant District Judge No. 1, Gauhati, whereby the defendant respondent's Appeal No. 7 of 1978 against the judgment and decree dated 8-2-78 passed by the learned Sadar Munsiff, Gauhati was allowed, and the plaintiff appellant's suit was dismissed.

(2.) The plaintiff had filed suit challenging the auction-sale of her 2 B.10 L. of land in Execution Case No. 41 of 1966 allegedly for Rs. 255/- on 27-9-67, on grounds of fraud and in disregard of the provisions of R. 85 of O. 21 of the Code of Civil Procedure, hereafter the Code'.

(3.) Briefly, the undisputed facts are that the present respondent had obtained decree against the present appellants in Title Suit No. 228/ 61 with costs, which was assessed at Rs. 199/-. The present appellant's appeal was dismissed. The present respondent filed Title Execution No. 41/66 for realisation of the cost decretal money. The appellant's land -2 B. 10 L. was sold in auction on 27-9-67. The appellant filed application under O. 21, R. 90 of the Code, being Misc. (J) Case No. 154/67 challenging the said sale. During the pendency of the said Misc. Case, it was stated by the appellant that the matter was settled between the parties and the decree was satisfied out of Court, in that an amount of Rs. 205/- had been paid in satisfaction thereof. The appellant alleged that suppressing that fact, the defendant the present respondent had the said sale confirmed on 19-5-69 without having deposited 'the excess amount' of sale proceed, as required under the mandatory provision of O. 21, R. 85 of the Code. The plaintiff appellant, therefore, filed the suit for setting aside the said auction-sale. The present respondent contested the suit and stated that the suit was not maintainable being barred by the provisions of S.47, O. 21, R. 2 and O. 21, R. 92(3) of the Code.