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Allahabad High Court · body

2001 DIGILAW 156 (ALL)

SHEO DHARI v. IVTH ADDL. DISTRICT JUDGE, MIRZAPUR

2001-02-16

SUDHIR NARAIN

body2001
SUDHIR NARAIN, J. ( 1 ) THE writ petition is directed against the order dated 18. 8. 1986 passed by respondent No. 1 whereby the appeal was allowed and the objection filed by the petitioner purporting to be under order 21. Rule 90 has been rejected. ( 2 ) BRIEFLY stated the facts are that respondent No. 2 filed Suit No. 145 of 1975 against the petitioner for recovery of money on the basis of pronote. The property belonging to the petitioner was attached before the judgment on 3. 4. 1975. The suit was decreed on 31. 7. 1978 for recovery of Rs, 4. 600 against the petitioner. ( 3 ) RESPONDENT No. 2 filed an application for execution of decree on 24. 3. 1981. The executing court issued proclamation of sale under Order XXI. Rule 66 of Code of Civil Procedure on 13. 4. 1981. The attached property was sold in auction on 15. 5. 1982. ( 4 ) THE petitioner filed an objection 11c praying for setting aside the sale on the ground of material irregularities in publishing and conducting the sale. The executing court rejected the application of the petitioner on 29. 10. 1983. The petitioner filed an application to recall the order on 1. 11. 1983. He also deposited Rs. 8,300 on 6. 11. 1983. On 30th August, 1985 the executing court recalled its order dated 29. 10. 1983. The objection of the petitioner was allowed by the executing court on 21. 9. 1985. Respondent No. 2 filed appeal against the said order. The appeal has been allowed by respondent No. 1 setting aside the order of the executing court vide order dated 18. 8. 1986 on the ground that the objection filed by the petitioner was barred by time and further he had not deposited the amount in accordance with the proviso to Order XXI. The appeal has been allowed by respondent No. 1 setting aside the order of the executing court vide order dated 18. 8. 1986 on the ground that the objection filed by the petitioner was barred by time and further he had not deposited the amount in accordance with the proviso to Order XXI. Rule 90 of code of Civil Procedure as amended by Allahabad High Court which reads as under : "provided that no application to set aside a sale shall be entertained ; (a) upon any ground which could have been taken by the applicant on or before the date on which the sale proclamation was drawn up-; and (b) unless the applicant deposits such amount not exceeding twelve and half per cent of the sum realised by the sale or furnishes such security as the court may, in its discretion, fix except when the Court for reasons to be recorded dispenses with the requirements of this clause. " ( 5 ) THE limitation for filing application was 30 days but as the Courts were closed during the last day of filing the application, the petitioner was entitled to file the application on the opening day. The property of the judgment-debtor-petitioner was auctioned on 15. 5. 1982. The Civil courts remained closed from 1st June, 1982 and opened on 2nd July. 1982. The limitation of 30 days was expiring on 14th June, 1982 on which date the civil courts were closed. The petitioner filed application under Order XXI. Rule 90, C. P. C. on 2. 7. 1982. Section 4 of the Limitation Act. 1963. provides that where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted or preferred or made on the day when the Court reopens. Section 4 of the Limitation Act was held applicable in regard to an application filed under Order XXI, Rule 89. C. P. C. In Durga Prasad v. Babu Lal and others, AIR 1922 All 195. it was held that an application to set aside the sale filed on reopening day was within time as it was filed within the extended period as provided under Section 4 of the limitation Act. Similar view was taken in Veerappa Channappa Condi v. Iratappa Malagi, AIR 1938 Bom 209, and Umedslngh Baliram Roghubanshi v. Shankerlal Jhanklal and others. it was held that an application to set aside the sale filed on reopening day was within time as it was filed within the extended period as provided under Section 4 of the limitation Act. Similar view was taken in Veerappa Channappa Condi v. Iratappa Malagi, AIR 1938 Bom 209, and Umedslngh Baliram Roghubanshi v. Shankerlal Jhanklal and others. AIR 1948 Nag 63. ( 6 ) AS the petitioner had filed the application on the opening day of the civil courts after summer vacations. the application filed by the petitioner under Order XXI, Rule 90, C. P. C. was maintainable. ( 7 ) THE next question is whether the application under Order XXI, Rule 90, C. P. C. was maintainable when the petitioner had not deposited the amount or security as provided under clause (b) of the proviso to sub-rule (1) of Rule 90 of Order XXI as amended by Allahabad High court. It provides that unless the applicant deposits such amount not exceeding twelve and half per cent of the sum realised by the sale or furnishes such security as the Court may. in its discretion, fix except when the Court for the reasons to be recorded dispenses with the requirements of this clause. It is not denied that the petitioner had deposited Rs. 8. 300 on 6. 11. 1983 covering the decretal amount prior to the Court decided the application on 21. 9. 1985. The word "entertain" in the proviso to sub-rule (1) has been interpreted by the Full Bench decision of this Court in M/s. Lallu Mal v. Sukhlal Daya Ram, (ILR) (1967) 2 All 724, and held that the word "entertain" means that the applicant can deposit the amount before the hearing takes place. In Hindustan Commercial Bank Limited v. Pannu Sahu, AIR 1970 SC 1384 , the court observed : "the word "entertain" in sub-clause (b) of the proviso to Rule 90 means adjudicate upon or to proceed to consider on merit and does not mean initiation of proceeding. " ( 8 ) THESE decisions were considered in Chunni Lal v. Santoo Led, AIR 1983 All 167 , and it was held that the amount can be deposited or security can be given under sub-clause (b) of proviso to rule 90 before adjudication takes place on the application under Order XXI. Rule 90. " ( 8 ) THESE decisions were considered in Chunni Lal v. Santoo Led, AIR 1983 All 167 , and it was held that the amount can be deposited or security can be given under sub-clause (b) of proviso to rule 90 before adjudication takes place on the application under Order XXI. Rule 90. The application of the petitioner, therefore, could not be rejected under Order XXI, Rule 90 of the c. P. C. ( 9 ) IT may, however, be pointed out that the application filed under Order XXI, Rule 89 shall not be maintainable if the amount is not deposited along with an application as provided therein. The deposit of the amount is a condition precedent for allowing an application filed by the judgment-debtor under Order XXI, Rule 89 of C. P. C. ( 10 ) THERE is another aspect of the matter. Sub-clause (a) of the proviso to "rule 90 provides that no application to set aside a sale shall be entertained upon any ground which could have been taken by the applicant on or before the date on which the sale proclamation was drawn up. In durga Prasad v. Brij Behari Lal and others, AIR 1981 All 172 , it was held that where the judgment-debtor could have raised objection to the valuation before the executing court when sale proclamation was drawn up, he will not be allowed to raise it subsequently in appeal. ( 11 ) RESPONDENT No. I, however, having not considered all these questions on merits, is directed to decide the appeal afresh on merits in accordance with law. ( 12 ) IN view of the above discussion, the writ petition is allowed. The Impugned order dated 18. 8. 1986 is hereby quashed and respondent No. 1 is directed to decide the appeal in accordance with law preferably within three months from the date of production of a certified copy of this order. .