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Rajasthan High Court · body

1999 DIGILAW 997 (RAJ)

Legal Heirs of Ram Kumar v. Banshilal

1999-08-07

V.S.KOKJE

body1999
Honble KOKJE, J.–Heard Mr. S.L. Jain for the revision petitioner and Mr. S.R. Bhandari for the non-petitioners. (2). This case has a long history. A decree was passed against the revision-petitioner on 14.2.69. In execution of that decree the property of the revision- petitioner was auctioned and the final bid was accepted on 29.7.72. On 26.8.72 the ju- dgment debtor moved an application which has all along been treated as an application under Order 21 Rule 89 C.P.C. On the same day a tender was filled in for deposit of the amount. The deposit was of an amount said to be inaccordance with Order 21 Rule 89 C.P.C. of 5% of the amount of the final bid. On 23.9.72 the executing court passed an order confirming the same and on 30.9.72 the sale certi- ficate was issued. According to the judgment-debtor the sale was confirmed oblivious of the application under Order 21 Rule 89 C.P.C. or without deciding the application under Order 21, Rule 89 C.P.C. The judgment debtor, therefore, filed an application for setting aside the sale on 03.10.72 which was rejected, treating it to be an application for review of the order dated 18.4.73. A revision was filed again- st this order and on 05.7.77 Hon`ble Mr. A.P. Sen, J. rejected it observing that it is not correct to say that the application under Order 21 Rule 89 CPC was not decided. In the words of his Lordship ``the order of the executing court dated 23rd September,1972 directing a confirmation of sale, was, by necessary implication, a composite order rejecting the application for setting aside the sale under Order 21 Rule 89 of the Code and its confirmation under Order 2 Rule 92 of the Code. That order cannot be read in any other way. The revision must fail. The judgment-debtor may, however, prefer an appeal under Order 43 Rule 1 (j) of the Code, if so advised. (3). After the aforesaid order in the revision petition the judgment-debtor preferred an appeal seeking condonation of delay/ extension of limitation, as the appeal had been delayed because of the pendency of the review petition. The delay was condoned and the appeal was entertained. It was ultimately decided on 9.2.83 and the case was remanded back to the executing court directing the executing court to decide the application under Order 21 Rule 89 after hearing arguments of the parties. The delay was condoned and the appeal was entertained. It was ultimately decided on 9.2.83 and the case was remanded back to the executing court directing the executing court to decide the application under Order 21 Rule 89 after hearing arguments of the parties. Curiously, in this order, the appellate Court oblivious of what was held in the revision petition by Hon. Mr. A.P. Sen, J., held that an application under Order 21, Rule 89 CPC was not decided by the executing court and, therefore, it committed a grave error in confirming the sale without deciding that application. It is strange that nobody pointed out the aforesaid decision in the revision petition to the learned Judge who remanded the case back. (4). A revision petition was preferred by the auction purchaser against the remand order. In this revision application also it was not pointed out that earlier, Hon. Mr. A.P. Sen, J. had held that the order dated 23.9.72 was a composite order deciding application under Order 21, Rule 92 CPC as well as confirming the sale. The result was that the revision petition was dismissed holding that the order challenged in the revision merely directed the executing court to decide the appellant`s application under Order 21, Rule 89 CPC on merits before confirming the sale since that application was pending on the day of the order dated 22.1.1972 confirming the sale. Thereafter the executing court, on 04.2.91 decided the application under Order 21 Rule 89 CPC in favour of the judgment- debtor and set aside the sale subject to payment of compensation to the auction purchaser for improvements made in the property over the years. Appeals were filed against that order by the auction -purchaser as well as by the LRS. of the judgment-debtor. While the auction-purchaser was aggrieved by the setting aside of the sale, the LRS. of the judgment-debtor were aggrieved by the order for payment of compensation for improvement in the property. Both the appeals were decided by the District Court on 16.2.96. The appeal of the auction purchaser was allowed and the order setting aside the sale was set aside. The appeal of the LRS of the judgment-debtor was re- jected. Against this order, the LRS. of the judgment-debtor have filed this revision petition. (5). Both the appeals were decided by the District Court on 16.2.96. The appeal of the auction purchaser was allowed and the order setting aside the sale was set aside. The appeal of the LRS of the judgment-debtor was re- jected. Against this order, the LRS. of the judgment-debtor have filed this revision petition. (5). The learned counsel for the revision petitioner submitted that the appellate court has exceeded its jurisdiction or atleast the limits of propriety by interfering with the findings reached by the trial court. It was also submitted that since the judgment-debtor had deposited the requisite amount within time and it applied for setting aside the sale within time, the sale could not have been confirmed. The learned counsel for the non- petitioners supported the decision by the lower appellate court. (6). I have heard the learned counsel and have perused the record of the lo- wer courts. The appellate court has not accepted the contention that the amount, as required by Order 21 Rule 89 CPC, was either paid to the decree holder or was deposited in the court. After discussing evidence on the point, the appellate court came to the conclusion that it has not been proved that the amount equivalent to 5% of the final bid was deposited by the judgment-debtor and it also found that in absence of certificaion under Order 21 Rule 2 CPC no amount could be said to have been paid to the decree-holder also. (7). Challenging these findings, the learned counsel for the revision-petitioner submitted that the amount was deposited by following the procedure prescribed for deposits in the civil courts and accordingly, Tender Form was filled in and sub- mitted to the court on 26.8.72, the day on which the application under Order 21 Rule 89 CPC was filed. The learned counsel also submitted that endorsement by the counsel for the decree-holder on the application itself that the decree-holder had received the entire decretal amount due, was sufficient to prove that the payment was made and it was not necessary for the purposes of tender that the payment is admitted to be made by the decree-holder. In response to an application under Order 21 Rule 89 CPC certification by the court under Order 21 Rule 2 CPC was not necessary. (8). In response to an application under Order 21 Rule 89 CPC certification by the court under Order 21 Rule 2 CPC was not necessary. (8). The learned counsel for the non-petitioner, on the other hand, pointed out that the provisions of Order 21 Rule 89 C.P.C. were not complied with inasmuch as the application was made on 26.8.72 and the payment of Rs. 105/- said to be 5% of the final bid of Rs.2050/- was deposited on 28.8.72. According to the learned counsel, in view of the decision of the `Supreme Court in P.K. Unni vs. Nirmala Industries (1) the payment under Order 21 Rule 89 CPC has to be made before making an application for setting aside the sale and subsequent deposit would ma- ke the application invalid. (9). A perusal of the application dated 26.8.72 shows that it is an application casually made without caring to comply with the requirements of Order 21 Rule 89 CPC or even to conform to the language used in that provision. It has not been stated in the application that the deposits, as required by the provision, have been made. But it is stated therein that the judgment-debtor was ready to deposit the amount. Such an application cannot be said to be strictly in accordance with Order 21 Rule 89 CPC. Moreover, the deposit of an amount equivalent to 5% of the final bid was made on 28.8.72, i.e. later than the application dated 26.8.72 under Order 21, Rule 89 CPC. There is no force in the contention that since the tender was registered with the executing court on 26.8.72 itself, the payment should be deemed to be made on that day even if the payment is actually made on 28.8.72 by deposit in the Bank. If the contention of the learned counsel for the revision-petitio- ner is accepted , it would only be necessary to get a tender registered and make deposit in the bank any time at will. Such a contention cannot be accepted. The payment means the payment in cash received by the Court or on behalf of the court by its authorized agent. In P.K. Unnis case (supra), the earlier view of the Supreme Court in Basavantappa vs. Gangadhar Narayan Dharwadkar & Anr. Such a contention cannot be accepted. The payment means the payment in cash received by the Court or on behalf of the court by its authorized agent. In P.K. Unnis case (supra), the earlier view of the Supreme Court in Basavantappa vs. Gangadhar Narayan Dharwadkar & Anr. (2), is overruled and it was held that deposit required by Order 21,Rule 89 is a condition precedent to an application to set aside the sale. It is further observed that Rule 89 postulates an application on deposit. It says `may apply to have the sale set aside on his deposi- ting in Court . These words show that deposit is a condition precedent to the making of an application to set aside a sale. Again at the end of paragraph 10, the court observed that the deposit must necessarily precede the application, for no application under Rule 89 can be made except on depositing the amount in Court. (10). It is, therefore, clear that the application dated 26.8.72 could not have been treated as a valid application under Order 21, Rule 89 CPC for setting aside the sale. That being the position, the confirmation of the sale could not have been said to be invalid or illegal. (11). Even assuming that the application dated 26.8.72 could be treated as a valid application under Order 21, Rule 89 CPC, I see no reason to take a different view than the view taken by the lower appellate court, after discussing the evidence and material on record that it has not been proved that any deposit was made in the Court or payment was made to the decree-holder. (12). For the aforesaid reasons, the revision petition fails, it is dismissed. There shall be no order as to costs.