HANUMAN BUX Vs. SUBODH SINGH

JUDGEMENT

(1.) Heard counsel for the parties.

(2.) The petitioners, plaintiffs-decree holders, being aggrieved by an order of the executing Court dated 5-1-2006 in Money Execution Case No. 2/2002 have moved this Court and their plain and simple case is that the Court below has committed an apparent jurisdictional error in entertaining and allowing the application dated 18-7-2005 of the defendants-judgment debtors-O.Ps. 8,12 and 13, permitting them to assail the sale dated 20-6-2005 even without compliance of mandatory provision of deposit of 5% of the sale amount and the entire amount of sale in terms of Order 21, Rule 89 of the Code of Civil Procedure.

(3.) Mr. Sukumar Sinha, learned senior counsel for the petitioners, in this regard has submitted that when the money suit No. 5/ 1998 filed by the plaintiffs-petitioners for realization of Rs. 2,71,036/- had been decreed on 19-12-2001 with a direction to the defendants-judgment debtors-O.Ps. to pay the amount within 60 days and when the decretal amount was not deposited in the aforer mentioned period of 60 days, the Court below having proceeded in the matter in the execution case filed by the plaintiffs-petitioners, Money Execution Case No. 2/2002, and put the property on auction sale on 20-6-2005 as well as the sale to have been effected on payment of Rs. 4,25,000/- in favour of the decree-holders could not have even entertained much less allowed the aforesaid application dated 18-7-2005 without tendering the amount in question involved under sale within a period of 30 days from the date of sale and thus ought to have not passed the impugned order which has the effect of extending time for deposit of the amount under sale in complete violation of the spirit of Order 21, Rule 89, CPC. Mr. Sinha in that context has placed his strong reliance on the judgment of the Apex Court in the case of P. K. Unni v. Nirmala Industries, reported in AIR 1990 SC 933.