GOVERDHANDAS KANHAYALAL BHATE Vs. RANCHHODDAS BHIKHARILAL SHET BHATE

JUDGEMENT

(1.) This is an appeal filed by the judgment-debtor against the order dismissing Ins application to set aside the sale under Order XXI, Rule 89. The facts of the case are briefly these. The plaintiff obtained a mortgage decree and filed Darkhast No. 110 of 1944 to execute the decree. That decree was transferred to the Collector for execution. On May 11, 1946, the decree-holder purchased the property for Rs. 18,250. On June 3, 1946, the defendant- judgment-debtor applied to the Collector to set aside the sale under Order XXI, Rule 90, and on June 8, 1946, the judgment-debtor entered into an agreement with one Dhondiram for the sale of the property which had been sold in execution. One of the conditions was that Dhondiram was to deposit Its. 19,500 in Court. This amount was deposited by Dhondiram on June 8, 1946, on behalf of the judgment-debtor. Then the judgment-debtor made the present application for setting aside the sale under Order XXI, Rule 89.

(2.) The decree-holder contended that it is not competent to the judgment-debtor to file an application under Order XXI, Rule 89, as the amount is not deposited by him, and secondly, he contended that when an application under Order XXI, Rule 90, is pending, it was not competent to the judgment-debtor to make another application under Order XXI, Rule 89. Both these contentions found favour with the trial Court, with the result that the application to set aside the sale stands dismissed. Against this order the defendant-judgment-debtor has come in appeal.

(3.) If the case had been res integra there would not have been any difficulty in arriving at the conclusion. Paragraph 2 of Order XXI, Rule 89, reads thus : Where a person applies under Rule 90 to set aside the sale of his immoveable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.