SANTOSH BALA DEBI Vs. RAM CHANDRA GHATI

JUDGEMENT

(1.) The petitioners in this case, who are parda nashin ladies, invite us to vacate the order of the Munsif dated the 11 February 1921 confirming the sale of the petitioners property and virtually refusing an application made by them under Order XXI, Rule 89, Civil Procedure Code.

(2.) It appears that the property was sold on the 18 December 1920 and purchased by the opposite party for Rs. 730 who deposited the earnest money on that day. On the 4 January 1921 the opposite party deposited the balance of the purchase money and the 22nd of January, was fixed for confirmation of the sale. On the 17 January the judgment-debtors, petitioners before us, deposited the claim and costs with compensation and prayed that the sale might be set aside. On the 22nd January, the date fixed for the confirmation of the sale, the Court passed the following order "Judgment-debtors Nos. 1 to 5 have deposited the claim costs with compensation money within time. Issue notice on the auction-purchaser. Judgment- debtors Nos. 1 to 5 do file process-fee and duly filled in processes within 3 days. Put up on 9th February next," On the 9 February it was found that processes and process fee had not been filed and deposited in Court. The case was accordingly adjourned to the 11 February for orders. On that date the Court passed the following order: "Judgment debtors Pleader Babu Ram Pada Mukherjee and clerk Babu Kashinath Chatterjee were asked to take steps for the service of notice on the auction-purchaser. Bat they did not take any steps. So the money deposited by the judgment-debtors cannot be accepted by the Court. Let the sale be, therefore, confirmed."

(3.) It is contended by the petitioners that this order is wrong and the Court should not have confirmed the sale in the circumstances detailed above. Order XXI, Rule 92, Civil Procedure Code, no doubt, lays down that no order shall be made under Rule 89 unless notice of the application has been given to all persons affected thereby, and no doubt the auction- purchaser, who is one of such persons, is entitled to notice of the application under that rule. Rule 92, however, does not make it obligatory on the applicant to pay the process-fee or to serve notice according to the mode of service prescribed in the Civil Procedure Code, in every case. It is clear from an examination of the record that the auction-purchaser appeared through a Pleader on the 18 December 1920, the day on which the sale was held. He further appeared in Court on the 4 January 1921, when be deposited the balance of the purchase- money. He must, therefore, be considered as a party on the record who had entered appearance in Court and accordingly notice of the application could have been given to his Pleader on the record. We have not been referred to any authority which makes it incumbent on the judgment-debtor in such circumstances to pay any process-fee for a formal service of notice of the application on the auction-purchaser. We are satisfied that the order passed by the learned Munsif which was affirmed on appeal by the Subordinate Judge of Asansol is wrong and ought to be set aside.