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Raoji Baburao Vs. Bansilal Narayan Marwari - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 74 of 1918
Judge
Reported inAIR1919Bom130; (1919)21BOMLR835
AppellantRaoji Baburao
RespondentBansilal Narayan Marwari
Excerpt:
.....xxi, rule 89-sale in execution-deposit in court of decretal amount-no application to set aside sale-application could not be spelt out of deposit merely-high court- revisional jurisdiction.;the applicant's property having been sold in execution of a decree against him, he deposited in court, within thirty days of the sale, the decretal amount together with interest on the purchase money ; but he made at that time no application to set aside the sale the sale was confirmed later and the court gave notice to the applicant to take away the money. the applicant applied that his deposit should be considered as an application to set aside the sale but the lower court rejected the application. the applicant having applied to the high court under its extraordinary jurisdiction :-;(1) that no..........which applications specifying their object should be made to set aside sales, and the shortness of time allowed may be taken as indicative of the policy of the legislature that titles arising from judicial sales should be settled as soon as possible. now we have an application before us, three years after the confirmation of a judicial sale, to set it aside, the reason being that the applicant who ought to have applied to the court did not apply to the court when he deposited his money. we should be violating the principle under which the rules are framed for obtaining finality at an early date in such matters if we were to accede to the present application, even if we assume that it could be brought within the terms of section 115. the applicant's only remedy is to take back his money......
Judgment:

Basil Scott, C.J.

1. Less than thirty days before the 3rd of September 1915 the property of the applicant was sold in execution of a decree against him, and on the 3rd September, the applicant deposited in Court the amount of the decree together with interest on the purchase money for the property sold. He obtained from the Nazir of the Court who received the money a receipt which recorded that it was paid on account of the Darkhast and on account of interest. But no application was made at that time to set aside the sale. Presumably the intention was to do what was required under Order XXI, Rule 89. No application having been made to set aside the sale, the sale was confirmed in January 1916, and thereafter the Court gave notice to the applicant as depositor to take away his money. He then applied that his deposit should be considered as an application to set aside the sale. That application was refused, and the applicant did not appeal, although he was represented by a pleader. Then later he repeated his previous application which was rejected by the Subordinate Judge, and after that an appeal was preferred to the District Court, which was asked to deal with the matter under Section 151 of the Code, for making such order as might be necessary to prevent abuse of the process of the Court or for the ends of justice. The learned District Judge having rejected the appeal, the applicant now comes here under Section 115 of the Code for the interference of the High Court. It is difficult to see how this application will lie under Section 115. There is no defect whatever in jurisdiction, no irregularity in the exercise of jurisdiction. All the irregularities are on the side of the applicant. The Code, with the Limitation Act, provides a short period within which applications specifying their object should be made to set aside sales, and the shortness of time allowed may be taken as indicative of the policy of the Legislature that titles arising from judicial sales should be settled as soon as possible. Now we have an application before us, three years after the confirmation of a judicial sale, to set it aside, the reason being that the applicant who ought to have applied to the Court did not apply to the Court when he deposited his money. We should be violating the principle under which the rules are framed for obtaining finality at an early date in such matters if we were to accede to the present application, even if we assume that it could be brought within the terms of Section 115. The applicant's only remedy is to take back his money. The concession which is allowed to judgment-debtors is only allowed under certain conditions. Those conditions do not exist in the present case. We must, therefore, discharge the rule with costs. One set of costs.


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