RADHARAMAN CHOUDHARY Vs. GULAB THAKUR

JUDGEMENT

(1.) This application in revision is by the claimant applicant against the judgment and the order of the Additional District fudge of Darbhanga in Miscellaneous Appeal No. 6 of 1955 reversing those of the Munsif, first court there, setting aside a sale held on 13-11-1954.

(2.) The short facts are these, one Musammat Singhasan Thakurain obtained a money decree for maintenance for the years 1358 to 1360 Fasli against the judgment-debtors-opposite second party. That decree was purchased by the opposite first party (hereinafter to be referred to as the decree-holder) by a sale deed dated 17-7-1953, who started execution of the same in Execution Case No. 137 of 1953 in the court of the Munsif, first court, Darbhanga. By his execution petition, he sought to recover a sum of Rs. 477/8/-, but on calculation by the office, the decretal dues came to be Rs. 468/7/- only, and, accordingly, the sale, proclamation was issued for recovery of the latter amount. On 11-2-1954, the petitioner preferred a claim under Order 2,1, Rule 58 of the Code of Civil Procedure which gave rise to Miscellaneous Case No. 20 of 1954. It was dismissed on 24-8-1954. On 21-9-1954, an application was filed by some of the judgment-debtors alleging that the decree was wrongly prepared for a larger amount and it ought to be reduced. This gave rise to Miscellaneous Case No. 120 of 1954. During the pendency of this miscellaneous case, the sale was held on 13-11-1954, and the property was sold to the decree-holder for Rs. 478 and a set off was allowed with regard to the same. On 29-11-1954, the Miscellaneous Case No. 120 of 1954 was allowed and the amount of the decretal dues was reduced to Rs. 415/15/-. On 8-12-1954, the petitioner made an application under Order 21, Rule 89 of the Code of Civil Procedure for setting aside the sale on deposit of the requisite amount. In that application he stated that he was going to file a title suit under Order 21, Rule 63 of the Code of Civil Procedure to establish his right which had been rejected in the proceeding under Order 21 Rule 58 of that Code. That prayer, however, was rejected on that date in limine but on 10-12-1954, the petitioner renewed his prayer by a fresh application, and on this occasion the Munsif allowed the Drayer and the petitioner deposited a sum Rs. 439/15/- by chalan No. 632 of 11-12-1954. The decree-holder, however, objected to the sale being set aside on the ground that the petitioner had no right to make the deposit and the deposit was insufficient. The Munsif overruled the objection and set aside the sale. But on appeal by the decree-holder-auction purchaser, the Additional District Judge of Darbhanga held that the sale could not be set aside and accordingly passed an order setting aside the order of the Munsif. Being, thus, aggrieved, the petitioner has presented this application in revision in this court.

(3.) The learned Additional District Judge in reversing the judgment and the order of the Munsif held that the petitioner had no right to make an application under Order 21 Rule 89 of the Code of Civil Procedure and that the deposit so made was insufficient. Mr. Kumar appearing for the petitioner has contended that the learned Additional District Judge has committed an error of law in coming to the above conclusions. His contention is that the person who having lost his claim under Order 21, Rule 58 of the Civil Procedure Code contemplates to file a suit under Rule 63 of that Order, is entitled to make an application for setting aside the sale under Order 21 Rule 89 of that Code. His further contention is that the amount deposited is sufficient in view of the amendment of the decree. In my opinion, both the contentions are well founded and must prevail.