JUDGMENT D.S. Sinha 1. This petition, under Article 226 of the Constitution of India, is directed against the order and judgment dated 6th September, 1984, passed by the IX Addl. District Judge, Moradabad, in Civil Revision No. 45 of 1984, arising out of the Execution Case No 16 of 1983, setting aside the judgment and order dated 24th November, 1983, passed by the executing court whereby it declined to set aside the sale of a Kothari in favour of the decree-holder, the petitioner) before this Court. 2. The relevant facts, as they emerge from the pleadings in the petition and the judgments of the executing court and of the learned Addl. District Judge, are these. A proclamation in respect of the disputed Kothari, under Order XXI Rule 66 of the Code of Civil Procedure, 1908, hereinafter called the Code, was issued on 31st May, 1983 filing 25th August, 1983 as the date for sale by auction. On 24th August, 1983 the judgment-debtors, the respondents no. 2 and 3 before this Court, approached the executing court praying for stay of the proposed auction sale on the ground that the proceedings for sale were fraudulent. The application was opposed by the petitioner. 3. After considering the application and the objection of the petitioner, the executing court, by means of its order dated 25th August, 1983, ruled that the sale could be stayed only if the judgment-debtors deposited a sum of Rs. 233/- in court. The judgment-debtors did not satisfy the requirement of making deposit of the aforesaid amount of Rs. 233/-. The auction of the disputed Kothari was, therefore, held on 25th August, 1983, as scheduled. It appears that the decree-holder also participated in the auction and his bid was accepted. The sale of the Kothari in favour of the decree-holder was confirmed by the executing court by means of the order dated 24th September, 1983. Thus the sale became absolute as envisaged under Rule 92 of Order XXI of the Code. 4. On 26th September, 1983, one of the judgment-debtors, namely, Abid Ali, moved an application informing the executing court that the entire decretal amount had been deposited in the court and praying for setting aside of the sale of the Kothari and dismissal of the execution application. A copy of this application is to be found on record before this court as Annexure-3 to the petition. A copy of this application is to be found on record before this court as Annexure-3 to the petition. The application does not disclose the date of making the requisite deposit under Rule 89 of Order XXI of the Code. However, from the narration of the facts in the impugned judgment, the date of deposit appears to be 26th September, 1983. To the application of the judgment-debtors the petitioner-decree-holder filed an objection dated 19th October, 1983, a copy where of is it Annexure to the petition. The petitioner pleaded that the sale of the Kothari, having already been confirmed on 24th September, 198B, could not be set aside. Alternatively, it was submitted that the requisite deposit was not made within thirty days which was a condition precedent under Rule 89 read with Rule 92 of Order XXI of the Code. Executing Court, after examining the respective case of the judgment- debtors and of the decree-holder, held that the application of the judgment- debtors was not maintainable in as much as the requisite deposit under Rule 89 of Order XXI of the Code was not made within the prescribed period, and, further that the sale, having already been confirmed on 24th September, 1983 was no longer open to be set aside. Executing court noted an additional factor, namely, the lapse on the part of the judgment-debtors to deposit the sum of Rs. 233/- as ordered on 25th August, 1983, on the application made by them. The court was of the view that the judgment- debtors did not deposit the decretal amount deliberately and allowed the sale proceedings to go on. They were, therefore, not entitled to have the sale set aside. The executing count, therefore, by means of its order and judgment dated 24th November, 1983, rejected the application of the Judgment-debtors for setting aside the sale of the Kothari. 5. Aggrieved against the order and judgment dated 24th November 1983 the judgment-debtors filed a revision under section 115 of the Code wherein the impugned order and judgment dated 6th September, 1984 was passed and whereby the order and judgment of the executing court dated 24th November, 1983 was set aside,, the delay In making the deposit by the judgment-debtors, under Rule 89 of Order XXI of the Code, was condoned and the matter was remanded to the executing court for decision afresh. 6. 6. Sri S. A. Gilani, learned counsel for the petitioner, contends that the learned Judge committed a manifest error of law in remanding the matter and directing the executing court to consider the prayer of the judgment-debtors for setting aside the sale in as much as such a prayer could not be entertained in view of the confirmation of sale of the Kothari on 24th September, 1983. Further contention of SRI Gilani is that the learned Judge had no power to condone the delay in making the deposit under Rule 89 of Order XXI of the Code as section 5 of the Limitation Act, 1963 clearly excluded the provisions with regard to the extension of prescribed period in relation to the proceedings under Order XXI of the Code. It is not disputed that the application for setting aside the sale of the Kothari moved by the judgment-debtors was one under Rule 89 of Order XXI of the Code. 7. An application under Rule 89 of Order XXI of the Code for setting aside the sale can be entertained only on applicant's depositing in court for payment to the purchaser, the sum equal to five percent of the purchase money and for payment to the decree-holder, the amount specified in the proclamation of the 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. The deposit under this rule has to be made within 30 days from the date of sale as provided under sub-rule (2) of Rule 92 of Order XXI of the Code. The deposit under Rule 89 within 30 days of the date of sale is mandatory. If the requisite deposit is made within the prescribed period and a prayer foe setting aside of the sale under Rule 89 is made, the executing court shall Dot confirm the sale until the disposal of the prayer. But if the deposit is not made within the prescribed period, the prayer for setting aside the sale under Rule 89 cannot be entertained. AN application under Rule 89 of Order XXI of the Code which is not preceded by requisite deposit within 30 days of the date of sale is no application under Rule 89. But if the deposit is not made within the prescribed period, the prayer for setting aside the sale under Rule 89 cannot be entertained. AN application under Rule 89 of Order XXI of the Code which is not preceded by requisite deposit within 30 days of the date of sale is no application under Rule 89. Sub-rule (1) of Rule 92 of Order XXI of the Code provides that where no application is made under Rule 89, Rule 90 or Rule 91 or where such application is made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute. 8. In the instant case, indisputably, the requisite deposit under Rule 89 of Order XXI of the Code was made beyond the period prescribed therefor, namely, 30 days. The application dated 26th September, 1983, whereby the prayer for setting aside the sale of the disputed Kothari under Rule 89 of Order XXI of the Code was made, was, therefore, no application in the eye of law. Even if the application could he taken to be a proper application, the same was. infructuous as it was moved after the order of confirmation of the sale passed on 24th September, 1983 whereupon the sale of the disputed Kothari had become absolute. Once the sale is confirmed and becomes absolute it cannot be set aside, and the judgment-debtors cannot get back the property sold in execution of the decree under the provisions of Order XXI of the Code. The first contention of Sri Gilani is, therefore, upheld. 9. Since the petition succeeds on the first contention itself, it is not necessary to go into the second submission of Sri Gilani in respect of the applicability of the provisions of the Limitation Act. 1963 in the matter of condonation of delay in making deposit under Rule 89 of Order XXI of the Code. 10. In the result, the petition succeeds and is allowed. The impugned order and judgment dated 6th September, 1984, passed by the IX Addl. District Judge, Moradabad, the respondent no. 1, in Civil Revision No. 45 of 1984, arising out of execution case no. 16 of 1983, between Abid Ali and Azizul Rehman and others, is quashed. The order and judgment dated 24th November, 1983, passed by the learned Munsif, Moradabad, rejecting the application of the judgment-debtor-opposite parties no. 2 and 3 dated 26th September. 1, in Civil Revision No. 45 of 1984, arising out of execution case no. 16 of 1983, between Abid Ali and Azizul Rehman and others, is quashed. The order and judgment dated 24th November, 1983, passed by the learned Munsif, Moradabad, rejecting the application of the judgment-debtor-opposite parties no. 2 and 3 dated 26th September. 1983, is upheld. There shall be no order as to costs. Petition allowed.