S T RM CHIDAMBARAM CHETTIAR Vs. SARMANNAMALAI CHETTIAR

JUDGEMENT

(1.) In O.S. No. 95 of 1911, Ramnad Additional Sub-Court, a decree was passed on a mortgage and the mortgaged property was brought to sale in E.P. No. 884 of 1923. Defendants 19 to 21 objected to the execution, their objection was dismissed and they took the matter on appeal to the High Court. Defendants 15 to 17 attacked the sale under Order 21, Rule 90. Defendants 2 and 3 attacked the sale under Order 21, Rule 90.

(2.) Defendants 19 to 21 also deposited the decree amount on 3 September 1924 and prayed to have the sale set aside under Order 21, Rule 89 (E.A. No. 193 of 1924). They obtained a stay of any further proceedings under Rule 89 pending disposal of their appeal in the High Court objecting to the execution itself. On 30 September 1925, the applications under Order 21, Rule 90 were allowed and the sale was set aside. Against this the vendee interested in items 1 to 4 appealed to the High Court on 26 October 1925 and the vendee interested in items 5 and 6 appealed to the High Court on 18 December 1925, C.M. As. 487 and 566 of 1925. It is with items 5 and 6 that the present case is concerned.

(3.) When the sale was set aside, defendants 19 to 21 first got their stay order in the High Court cancelled, and then applied to the Court in Ramnad District for permission to withdraw E.A. No. 193 of 1924 which they had filed under Order 21, Rule 89. The Sub-Court ordered on 1 December 1925. "The application, E.A. No. 193 of 1924, will be dismissed as withdrawn," and on 3 December 1925 the deposit made by them under Order 21, Rule 89 was refunded.