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Jit Singh Vs. Daulatia Tamta and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All167
AppellantJit Singh
RespondentDaulatia Tamta and anr.
Excerpt:
- .....the entire decretal amount together with 5 percent on the purchase money as compensation to the auction purchaser. the application, as it was drawn up, did not show the auction purchaser in the array of parties. it was not till after the expiry of 30 days allowed by law for an application under order 21, rule 89 being made that the auction purchaser was impleaded. the learned district judge has held relying on karamat khan v. mir ali ahmad [189l] a.w.n. 121 and ali gauhar v. bansidhar [1893] 15 all. 407 that the application under order 21, rule 89, is barred by limitation. it is not necessary to discuss the question in detail as the latest case in point decided by a bench of this court and reported in dip chand v. sheo prasad : air1929all593 is decisive. it has been held in the case.....
Judgment:

Niamatullah, J.

1. This is an application for revision from an order passed by the learned District Judge of Kumaun dismissing the application under Order 21, Rule 89, Civil P.C. of the applicant, who was judgment-debtor in the proceedings out of which the revision has arisen and whose property had been sold in execution of decree. He deposited the entire decretal amount together with 5 percent on the purchase money as compensation to the auction purchaser. The application, as it was drawn up, did not show the auction purchaser in the array of parties. It was not till after the expiry of 30 days allowed by law for an application under Order 21, Rule 89 being made that the auction purchaser was impleaded. The learned District Judge has held relying on Karamat Khan v. Mir Ali Ahmad [189l] A.W.N. 121 and Ali Gauhar v. Bansidhar [1893] 15 All. 407 that the application under Order 21, Rule 89, is barred by limitation. It is not necessary to discuss the question in detail as the latest case in point decided by a Bench of this Court and reported in Dip Chand v. Sheo Prasad : AIR1929All593 is decisive. It has been held in the case last mentioned that the judgment debtor making an application under Order 21, Rule 89 need not show the name of auction purchaser in the array of parties noted in the heading of the application and that all that he is required to do is to deposit the required sum of money. This being done, it is the duty of the Court to issue notice to the person whom it has previously declared as auction purchaser to show cause against the sale being set aside. In this view of the matter this application for revision must succeed.

2. The learned advocate for the opposite party claims exemption from costs of this revision on the ground that the cases relied on by the learned District Judge were generally regarded as authority for the proposition accepted by him and that if subsequently, as is the case here, a different pronouncement is made by this Court, which either dissents from or explains away previous rulings, the successful party before the Court below should not be saddled with the costs of this revision. Under the circumstances of the case I am inclined to make the parties to this revision pay their own costs throughout.

3. For the reasons stated above, I allow this application for revision, and set aside the orders passed by both the Courts below and also the sale under Order 21, Rule 92, Civil P.C. The parties shall bear their own costs throughout.


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