POONAMCHAND Vs. SUMERCHAND

JUDGEMENT

(1.) THIS is a second appeal by the judgment-debtor against the order of the District Judge, Balotra, dated 9th November 1955, upholding the decision of the Civil Judge, Balotra, dated the 19th February, 1955.

(2.) THE facts giving rise to it are, that Hastimal and his sons Sumer Mal and Pukhraj (respondents) obtained a money decree against appellant Poonam Chand from the court of the Civil Judge, Balotra, on 29th May, 1953. On 18th January, 1954, the decree-holders presented an application for execution and requested for recovery of Rs. 5610/10/- after adding costs and interest accruing upto that date. In execution of the said decree, one house belonging to the judgment-debtor was put to sale. On 20th November, 1954, the decree-holder Hastimal was permitted by the executing court to bid at the auction. THE auction took place on 14th January, 1955. THE highest bid was that of the said decree-holder and so he was declared to be the purchaser of the property. On the 3rd of February, 1955, the validity or the sale wis challenged by the judgment-debtor on several grounds. That application was however,! dismissed by the court on 19th February, 1955. THE judgment-debtor then went in appeal but he was unsuccessful and therefore he has approached this Court.

(3.) SIMILARLY, the perusal of the provision to Rule 85 lays down that if the purchaser is a decree-holder, then in calculating the amount to be paid into the court, he shall have the advantage of any set-off to which he may be entitled under R. 72, but, as pointed out above, the right given to the decree-holder by Rule 72 is subject to the provisions of sec. 73 and, therefore, he must deposit the balance payable to the rival decree-holders under sec. 73 on of before the close of the fifteenth day from the sale of the property and thus he cannot claim the advantage of set-off to the extent of the amount payable to other decree-holders.