RAYAPATI VENKATASUBBA RAO Vs. KALAPATAPC NARAYANA RAO

JUDGEMENT

(1.) IN this case the learned Subordinate Judge has set aside a sale under Order XXI, Rule 89 of the Civil Procedure Code though no application for it had been made by the judgment debtor to the Court in time. The money, no doubt, had been paid into Court in tim6 but no application was made as required by Rule 89, Civil Procedure Code. There was only a lodgment schedule filed into Court along with the money as required by Rule 131 of the Civil Rules of Practice whenever any money is paid into Court. The learned Subordinate Judge has held that this lodgment schedule san be treated as equivalent to the application required by Rule 89. I regret I am unable to accept this view. There is no prayer in the lodgment schedule to set aside the sale under Rule 89 and I do not see how, without such a prayer, it san be treated as an application under the rule.

(2.) IT was suggested that an oral application should be presumed to have been made to the Court under the circumstances in this case and reliance is placed on the judgment of Tyabji, J., in Mariappa Annam V/s. Hari Hara Iyer (1) and on the oase Vannisami Thevar v. Perintyaswami Thevar (2) where the former sasa is cited and its effect stated. I confess that I do not understand what is meant by presuming an oral application. If it is a presumption of fact, it is rebutted. in this case, as it is found by the (District) Munsif that no oral application had been made and the Subordinate Judge has not set aside that finding. If the presumption is one of law, I do not know of any justification for such a presumption. The finding here being that no application was made in time in the present case either oral or in writing, one necessary condition for action under rule (sic)c9 fails and the order of the Subordinate Judge setting aside the same must itself be set aside. The order of the District Munsif is restored with costs here and in the Court below.