CHOTHMAL Vs. SAMRATH SINGH

JUDGEMENT

(1.) THIS second appeal has been filed by the decree-holder against an appellate decision of the Additional Commissioner Jodhpur dated 16-12-52 in a case relating to execution of a decree.

(2.) WE have heard the learned counsel appearing for the parties and have gone through the record as well. This appeal was heard originally ex parte on 29-1-54 and was allowed. Subsequently on the application of the respondents the ex parte order was set aside and the appeal has been heard again. The facts of the case are that a house belonging to the respondent Samarth Singh, Lala etc., was put to auction in execution of a decree obtained by the appellant. The last bid was knocked down on 9-11-51 for Rs. 2,221/-in favour of Virchand, who has since died and is now represented by his widow Mst. Ghisi. On that very date the Judgment-debtors applied before the executing court for stay of the execution proceedings on the ground that they were intending to his an appeal against the order rejecting their objections against the sale of the house. The S.D.O passed the following order: - "Recovery of 25%from the highest bidder be stayed till further orders as the applicants want to go in appeal. Put up on 30-11-1951." There were two further adjournments in the case and ultimately on 10-12-51 the court ordered that the auction purchaser be directed to deposit 25% of the bid money immediately and the residuary amount within a week. 25% money was deposited by the auction purchaser on 26-12-51 and the rest on 18-2-52. The judgment debtors raised an objection that as the auction purchaser had failed to comply with the mandatory provisions of Rule 153 and 154 of the rules made under sec. 8 of Rajasthan Revenue Courts, P & I Act, the sale proceeding should be set aside. The executive court held that the responsibility for this noncompliance rested upon the judgment debt or himself and the sale was valid. The judgment debtor went up in appeal before the Additional Commissioner who allowed the objection and cancelled the sale and the sale certificate and directed a fresh sale. The decree holder has come in appeal before us.