PALLIPURAYIL ASAN KUTTI Vs. MUKKOLAKKAL KOYYAMAN KUTTI

JUDGEMENT

(1.) This Civil Revision Petition arises out of an application made to set aside a sale of immovable property under Order 21, Rule 89, Civil Procedure Code. The sale was held on the 29 November, 1932. The property belonged to the first defendant who made no application to set aside the sale. It was purchased by the assignee decree-holder. The third defendant in the suit who is a mortgagee put in an application I.A. No. 616of 1932 on the 16 December, 1932, praying that a challan may be issued depositing in the Taluk treasury the amount mentioned in the said application.... In the application the purpose for which the challan was applied, the amount of the decree poundage-fee, the percentage of purchase money required for setting aside the sale under Order 21, Rule 89, the name of the purchaser and the fact of sale are all mentioned. The challan was accordingly issued, money was deposited and a receipt obtained from the treasury. The said receipt was filed in Court on the 21 December, 1932, with an application on behalf of the third defendant by his pleader. The application which was styled a memorandum ran thus: The receipt obtained in the matter of the deposit into Kurumbranad taluk treasury the sum of Rs. 385-14-6 comprising the decree amount in the above suit, poundage fee and percentage of purchase money (auction profit).

(2.) But there was no formal prayer to set aside the sale or any independent application made to do so. On the 4 January, 1933, an application was made to set aside the sale. In the affidavit he alleged the fact of his applying for the challan and also the application filed by him along with the receipt into Court. Paragraphs 7 and 8 of the said petition are important and they are as follows: 7. The application for challan on the 16 December, 1932, the memorandum filed on the 21 along with the receipt for the deposit of the money are only for the purpose of getting the sale set aside. The above applications should be also taken for an application to set aside the sale. 8. If the Court should consider for any reason that it could not grant relief as per the application filed herewith for setting aside the sale, the sale should be set aside on the strength of the application for challan and the memorandum and I am prepared to pay the necessary court-fee therefor.

(3.) It will thus be seen that apart from his independent prayer to set aside the sale he requested the Court to treat the application for challan and the memorandum filed on the 21st December, 1933, as applications to set aside the sale. On objection taken by the decree- holder that the application was barred by limitation lie filed an application to amend the memorandum filed by him on the 21 December, 1933, with the receipt for the money deposited by adding a prayer thus: It is prayed that the sale in the above suit may be set aside.