JAN MUHAMMAD Vs. SHITAL PRASAD

JUDGEMENT

(1.) This is an appeal by the auction-purchaser. The material facts are that the respondent, in execution of a decree for money which he obtained against Shital Pasad and others, had the judgment-debtor's house put up for sale. At the execution sale the house was purchased by the appellant on 8 July 1941. On 6th August the judgment-debtors had made an application to the Court for leave to deposit the decretal amount and other dues under Order 21, Rule 89. It has now been found as a fact that the actual deposit was made on 7th, although in the Court below there was a dispute as to whether the date of deposit was the 7 or the 8th. Without giving notice to the decree-holder the Court set aside the sale by an order dated 11 August 1941. Notice was not given to the decree-holder because, the Court observes, he knew of the application.

(2.) The auction-purchaser preferred an appeal against the order setting aside the sale. On the date fixed for the hearing of the appeal, namely, 13 March 1942, the Advocate for the judgment-debtors was not present, with the result that the appeal was allowed ex parte, and the order of 11 August setting aside the sale, was vacated. On 20 March the judgment-debtors applied for a copy of the appellate order. This copy was ready for delivery on 1 April and was actually delivered to him on the 7th. He was advised to apply to this Court in revision against the appellate order, and in consequence of this advice he swore an affidavit in this Court on 14 May 1942, for the purpose of supporting an application in revision.

(3.) The Court was, however, by that time closed for the long vacation and did not re-open until 20 July, on which date an application in revision was filed. This was listed for admission on 5 August, on which date it was summarily dismissed. Thereafter, the judgment-debtors applied for a copy of the judgment on 13th August and a copy was ready for delivery on 22nd. He did not, however, take delivery until 28 September. The Civil Courts closed for the long vacation on 9th October and re-opened on 11 November. On that date the judgment-debtors presented ah application for review of the appellate order of 13 March. The question that arises is whether this application was within time.