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Maruti Shidalappa Vs. Shivappa Mallappa Chaugule and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 306 of 1963
Judge
Reported inAIR1967Bom39; (1966)68BOMLR283
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 89
AppellantMaruti Shidalappa
RespondentShivappa Mallappa Chaugule and anr.
Appellant AdvocateH.D. Gole, Adv. for ;S.B. Bhasme, Adv.
Respondent AdvocateG.A. Kamte, Adv.
Excerpt:
.....procedure, 1908 - petition to set aside auction sale - no formal application for setting aside sale - purshis should be treated as an application under order 21 rule 89 to set aside sale - purshis clearly implied request to court to set aside sale under order 21 rule 89 - order of court below reversed - purshis is treated as an application under order 21 rule 89 - auction sale set aside. - - it must follow that a judgment-debtor, who makes the requisite deposit in court, and further makes a request to the court in any form that the action sale be set aside, complies with the requirements of order 21, rule 89. (3) now the contention of the judgment-debtor in the present case is, and from the beginning has been, that his purshis exhibit 35 clearly complies a request to the court..........respondent no. 2 for rs. 2,100. before the auction sale was confirmed, and within 30 days of the auctionsale, the judgment-debtor paid in court on 28th february 1961 the full amounts which were required to be paid under order 21, rule 89 of the civil procedure code for having the sale set aside. on the same day (18th february 1961) he filed in court a purshis (exhibit 35) in which he stated that he had deposited the amount of rs, 1,180 and odd, which was mentioned in the proclamation of sale, for the purpose of having the amount handed over to the decree-holder, that he had also deposited an amount of rs. 105 for being given by way of compensation to the auction purchaser as the purchase price was rs. 2,100, and that the amounts deposited by him should be accepted and that a receipt.....
Judgment:

(1) This second appeal has been filed by a judgment-debtor whose property, consisting of an agricultural land, was sold in Court auction in execution of a money decree passed against him. The auction sale took place on 30th January 1961 when the property was purchased by respondent No. 2 for Rs. 2,100. Before the auction sale was confirmed, and within 30 days of the auctionsale, the judgment-debtor paid in Court on 28th February 1961 the full amounts which were required to be paid under Order 21, Rule 89 of the Civil Procedure Code for having the sale set aside. On the Same day (18th February 1961) he filed in Court a Purshis (Exhibit 35) in which he stated that he had deposited the amount of Rs, 1,180 and odd, which was mentioned in the proclamation of sale, for the purpose of having the amount handed over to the decree-holder, that he had also deposited an amount of Rs. 105 for being given by way of compensation to the auction purchaser as the purchase price was Rs. 2,100, and that the amounts deposited by him should be accepted and that a receipt therefor should be given to him. No formal application for setting aside the sale was filed by the judgment-debtor. It appears however, that in view of the Purshis filed by the Judgment-debtor the Court issued to him a notice to show cause why the sale should not be confirmed. In response to this notice the judgment-debtor filed an application (Exhibit 40) on 27th March 1961 in which he prayed that his Purshis exhibit 35 should be treated as an application under Order 21, Rule 89 of the Civil Procedure Code to set aside the sale. The executing Court rejected this application, confirmed the auction sale and directed that the amounts deposited by the judgment-debtor should be returned to him. This order was confirmed by the Assistant Judge of Kolhapur on an appeal taken by the judgment-debtor. The decisions of the Courts below have been challenged in this second appeal

(2) Dealing with the case apart from authority it will be noticed that Order 21, Rule 89 requires that certain amounts specified in that provision should be deposited in Court and also that an application should be made to have the sale set aside. Article 166 of the first Schedule of the Limitation Act of 1908 laid down that an application under Order 21, Rule 89 must be made within 30 days from the date of sale. Although, however, the terms of Order 21, Rule 89 require an application to be made for having the sale set aside, nothing is stated in that rule regarding the mode in which such an application should be made. It must follow that a judgment-debtor, who makes the requisite deposit in Court, and further makes a request to the Court in any form that the action sale be set aside, complies with the requirements of Order 21, Rule 89.

(3) Now the contention of the judgment-debtor in the present case is, and from the beginning has been, that his Purshis exhibit 35 clearly complies a request to the Court to set aside the auction sale, and that therefore the Purshis should be treated as an application under O. 21, R. 89. A perusal of the Purshis exhibit 35 shows that it does contain a request, either by express words or by clear implication, that the amount of Rs. 1,180 and odd deposited by him should be paid to the decree-holder, that being the amount specified in the proclamation of sale, and that the amount of Rs. 105 deposited by him should be paid by way of compensation to the auction purchaser, since the amount of his purchase price was Rs. 2,100. Now it is clear that these amounts could be paid to the decree-holder and the auction purchaser respectively only after setting aside the auction sale. If the auction sale was not to be set aside, no question could have arisen of the judgment-debtor paying the amount mentioned in the proclamation of sale to the decree-holder and an amount by way of compensation to the auction purchase. It follows that a request for setting aside the auction sale is clearly implicit in the words used in the Purshis exhibit 35.

(4) Turning to the authorities on the point involved, I find that the main reason why the Courts below held against the judgment-debtor was the interpretation which they put on the decision of a Division Bench of this Court in Raoji v. Bansilal Narayan : AIR1919Bom130 . Before dealing with that case, however, I will examine some of the other authorities.

(5) In Jyotish Chandra v. Surendra Nath : AIR1939Cal153 the judgment-debtors had made the deposits as required by O. 21, R. 89, but had failed to present a formal application for setting aside the auction sale. However, challans by which the judgment-debtors deposited the amount had set out the purpose of the deposit. It was held that the challans by which the judgment-debtors deposited the requisite amounts and which contained the purpose of the deposit could be regarded as an application to set aside the auction sale under O. 21, R. 89 of the Civil Procedure Code. In Mahboob Khan v. Majid Husain : AIR1939All241 the judgment-debtor came to the Court within one month of the auction sale with a form of tender for deposit of the amount required by O. 21, R. 89 and the Munsiff signed the tender, which was then taken by the judgment-debtor to the treasury, where he deposited the requisite amount. No separate application, oral or written, for settling aside the sale was made by the judgment-debtor. It was held that the presentation of the form of tender to the Court for signature was itself an application, not only for the deposit of the requisite amount under O. 21, R. 89, but also to have the sale set aside. Although the form of tender did not use the actual words that the sale should be set aside, it was held that that was clearly the intention of the judgment-debtor when he presented the form for the signature of the Court. Again in Mst. Hirania v. Ram Piari, : AIR1950All367 it was held, following two earlier decisions (including the one mentioned above), that an application to deposit in Court the decretal amount and the five per cent purchase money as required by O. 21, R. 89 was itself an application for having the sale set aside.

(6) Turning to the aforesaid decision of this Court in : AIR1919Bom130 , the facts involved were somewhat peculiar. the judgment-debtor in that case had made the requisite deposit within 30 days, but had not approached the Court with any tender form, challan or Purshis. He had merely obtained from the nizir of the Court, who received the money, a receipt which recorded that the money was paid on account of the Darkhast and on account of interest. The auction sale was confirmed in due course and thereafter the Court gave notice to the judgment-debtor to take away the money deposited by him. He then applied that his deposit should be considered as an application to set aside the sale. When that application was rejected the judgment-debtor did not appeal from that decision, although he was represented by a Pleader. Later on he filed another application like the previous one and when that application was rejected he appealed to the District Court and eventually went in revision to the High Court. In these circumstances it was held that the judgment-debtor's application for revision did not le under S. 115 of the Civil Procedure Code, as there was no defect or irregularity in the exercise of jurisdiction by the lower Courts. It was pointed out that all the irregularities were on the side of the judgment-debtor, that more than three years had elapsed after the confirmation of the auction sale, that the shortness of time allowed under O. 21, R. 89 was indicative of the policy of the Legislature that, that titles arising from judicial sales should be settled as soon as possible, and that the revision application of the judgment-debtor could not, therefore, be allowed. It was not laid down in this case that a formal application was required to be filed by a judgment-debtor, who seeks to have an auction sale set aside under O. 21, R. 89. The facts of the case show that application whatsoever for setting aside the sale, whether oral or written, express or implied, was made to the Court at any time by the judgment-debtor . when subsequently the Judgment-debtor filed an application for setting aside the sale, the ground taken by him was 'that his deposit should be considered as an application to set aside the sale.' The decision implied that irregularity in the exercise of jurisdiction was committed by the Courts below when they rejected this application.

(7) The above authority does not affect the present case. Here the judgment-debtor after making the deposit, filed a Purshis and that Purshis was not only addressed to the Court but was actually recorded as exhibit 35 in the execution proceedings. The terms of that Purshis clearly implied a request to the Court to set aside the sale under Order 21 Rule 89. The auction sale was not confirmed by the executing Court in this case till after the Court rejected the judgment-debotr's application (Exh. 40) by which he had prayed that his Purshis exhibit 35 be treated as an application for setting aside the sale under Order 21, Rule 89.

(8) On behalf of the auction purchase-respondent No. 2, Mr. Kamte placed reliance on a decision of the Madras High Court in Pechiayee v. Vallamuthu Velan, : AIR1925Mad639 . It was held in that case that an application either in writing or oral was necessary before the Court could be called upon to set aside in execution sale under Order 21 Rule 89 and that a mere deposit in Court of the requisite amount within the prescribed period was not enough for the purpose. In the present case the judgment-debtor does not rely on the mere deposit, but says that his Purshis exhibit 35 amounts to an application for setting aside the auction sale and should be treated as such.

(9) Mr. Kamte also relied on the observation of Mr. Justice Lokur in Amritlal Narsilal v. Sadashiv 46 Bom LR 432: AIR 1944 Bom 233 that where a judgment-debtor seeks to set aside a Court sale under Order 21 Rule 89, he must strictly comply with the provisions of that rule. In that case the judgment-debtor had by a mistake in calculation deposited in Court a smaller amount than was required by Order 21, Rule 89, and it was held that he could not take advantage of that rule and have the sale set aside, even if he made good the deficit after the period of 30 days as soon as the mistake was discovered. Now the terms of Order 21, Rule 89 specify the amount, which is to be deposited by the judgment-debtor for payment to the auction purchaser as well as to the decree-holder, and a strict compliance with the terms of that rule requires that the judgment-debtor must not deposit less than the specified amount. The terms of Order 21, Rule 89 also require that the judgment-debtor should apply to have the sale set asid, but do not provide that the application shall be in any particular form. To file in Court a Purshis containing an implicit prayer for setting aside the sale, instead of a formal application does not amount to a non-compliance with that provision.

(10) I must accordingly hold that the Court below were in error in not treating the Purshis exhibit 35 as an application by the judgment-debtor for setting aside the sale under O. 21, R. 89 of the Civil Procedure Code. The orders of the Courts below are reversed, the Purshis exhibit 35 is treated as an application under Order 21, Rule 89 of the Civil Procedure Code, the application is granted, and the auction sale is set aside. Under the circumstances of the case, the auction purchaser will pay half the costs of the judgment-debtor in this Court and in the lower appellate Court.

IJ/RKC/G.G.M.

(11) Appeal allowed.


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