RONYA Vs. BALIRAM

JUDGEMENT

(1.) I am of opinion in this case that the orders of the lower Courts are improper ones. The learned District Judge, on the authority Of Tipangavda v. Ramangavda [1920] Bom. 50 and Raoji Baburao v. Bansilal [1919] 43 Bom. 735, has held that the application, dated 3rd September 1926, apparently presented to the Court on 4th September 1926, could not be held to amount to an application for setting aside the sale. In the 43 Bombay case quoted, there was apparently a mere deposit without application, a receipt being obtained from the nazir. In the 44 Bombay case quoted, no application to, or communication with, the civil Court was made. Here, the application was presented in the Court and there can be no question whatever, but that it was in effect intended to be an application under Rule 89, Order 21, Civil P.C., although, in the terms thereof, there was no express prayer for the setting aside of the sale. The reader's report shows that it was, however-supposed and presumed to be such and the application in question was duly signed by the Subordinate Judge.

(2.) IT is true that the report of the reader on the back of the application is not necessarily authoritative, but that report stated that the application was one for the setting aside of the sale. Although this was not so, having regard to the actual phraseology of the application, it was treated as such by the Subordinate Judge who signed the report and allowed the money to be deposited. In those circumstances, I am unable to concur with the lower Courts that the application was not, in effect, one for the setting aside of the sale. In view of its purport and terms, this was precisely what it was and it could indeed have been nothing else. On any reasonable construction of the document, therefore, it must be held that there was an application on 4th September 1926 for the setting aside of the sale, and it is not disputed that the applicant had made the necessary deposit therewith, as required by Rule 89, Order 21, Civil P.C.

(3.) IT follows, therefore, in my opinion that the Judge of the first Court was not entitled to confirm the sale: the order of 13th November 1926 passed by the Subordinate Judge, is reversed and Execution Case No. 187 of 1925 is remanded to his Court for disposal according to law in accordance with the above remarks. The present applicants' costs in this Court and in the lower appellate Court will be borne by the non-applicant, decree-holder. I fix Rs. 15 as pleader's fees.