MARUDAMUTHU KADURAR Vs. MINOR ARUMUGASAMI KADURAR

JUDGEMENT

(1.) This Civil Revision Petition arises out of an application made under Order 21, Rule 89, Civil Procedure Code, to set aside a court sale. The application was made by three petitioners, of whom the petitioner was the third petitioner before the Subordinate Judge. The other two petitioners were the purchasers of two lots of the property sold, namely, lots 1 and 3.

(2.) The facts are briefly these. In execution of the decree in O.S. No. 109 of 1927 in which the petitioner was the only defendant, four items of property were ordered to be sold. The first petitioner in the lower Court purchased the first lot for Rs. 1,000 which was deposited by him. Lot 2 was not sold. The second petitioner purchased the third lot for Rs. 800. He also deposited the money into Court. Lot 4 was purchased for Rs. 1,005 by the decree-holders who were minors represented by their next friend. Pending confirmation of the sale the 3rd petitioner (that is, the judgment-debtor-petitioner) privately sold lot 1 to the first petitioner for a sum of Rs. 1,200. He wanted that a sum of Rs. 957-13-0 out of this amount may be appropriated towards the decree amount, the balance being the poundage of Rs. 42-3-0. Lot 3 properties were sold by the judgment-debtor privately to the second petitioner for Rs. 1,000. He prayed that out of that sum Rs, 764-1-0 may be appropriated towards the satisfaction of the decree, the balance of Rs. 35-15-0 representing poundage. The third petitioner, the appellant, has deposited in Court Rs. 369-8-0. Thus the total amount available is Rs. 957-13-0 plus 764-1-0 plus 369-8-6, in all Rs. 2,091-6-6. This amount will cover the amount mentioned in the sale proclamation, that is, Rs. 1,998-14-6 plus 5 per cent, on the sale price of lot 4 purchased by the decree-holders plus the poundage in respect of the sale of lot 4. In these circumstances the three petitioners ask the Court to set aside the sale stating that they have complied with the provisions of Order 21, Rule 89, Civil Procedure Code, the relevant portions of which are as follows: (1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding any interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court, (a) for payment to the purchaser, a sum equal to five per cent, of the purchase money, and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(3.) It will be observed that of the three petitioners, petitioners 1 and 2 are themselves purchasers of two items of the property and are hence incompetent to maintain an application under Order 21, Rule 89. But the judgment-debtor being one of the petitioners entitled to apply under Order 21, Rule 89, the question whether the sale can be set aside in the above circumstances has to be considered; and, as already stated, he is the only petitioner before this Court.