KAMLA PRASAD Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) Heard learned Counsel for the petitioners and learned Counsel for the auction purchaser opposite-party. There is no appearance at the hearing of this application on behalf of the decree-holder opposite-party.

(2.) The learned Fourth Additional Subordinate Judge, Motihari has rejected the application filed on behalf of the judgment-debtor petitioners for setting aside sale of a shop belonging to them and run in the name and style of M/s. Arun Vastralaya, on the ground that the application was filed beyond the period of 30 days as prescribed under Article 127 of the Limitation Act, 1963.

(3.) The decree-holder opposite-party (the State Bank of India) had advanced a loan to the petitioners, which loan the petitioners failed to repay. The Bank instituted Money Suit No. 50 of 1978 which was eventually heard and decided against the petitioners by the learned Subordinate Judge, Motihari. When the said decree was put in execution, the petitioners appeared and prayed for instalments. The learned Subordinate Judge directed for the satisfaction of the decree by payment of the decretal amount in instalments. The petitioners thereafter paid some instalments but failed in paying off all the instalments. This occasioned attachment of the shop of the petitioners and sale thereof in the sale conducted on 10-10-1983. The auction purchaser (Opposite-party No. 2) purchased the shop for a sum of Rs. 3,000 only. Before, however, the sale was confirmed on 22-12-1983, the petitioners applied for setting aside the sale on grounds, inter alia, that the property sold was grossly under-valued and that no notice of the said sale was ever served upon any one of them. Holding, however, that the application on behalf of the petitioners was one under Order XXI, Rule 90 of the Code of Civil Procedure and it had to be filed within thirty days of the sale and finding that the application was filed beyond the period of thirty days, the learned Subordinate Judge dismissed the prayer to set aside the sale and rejected the application.