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Gajadhar Das Vs. Ram Sumiran Dube - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1919All339; 52Ind.Cas.161
AppellantGajadhar Das
RespondentRam Sumiran Dube
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 89 - execution of decree--sale--application to set aside sale--deposit made but not received by court within thirty days--sale, whether should be set aside. - - ' it is clear that had the court received the money, it would have been deposited as the judgment-debtor distinctly said in his application that he had the money ready and he asked the court in clear terms to receive it, on the 1st of may 1918 the money was actually deposited......have been deposited as the judgment-debtor distinctly said in his application that he had the money ready and he asked the court in clear terms to receive it, on the 1st of may 1918 the money was actually deposited. the court of first instance refused to set aside the sale, on the ground that the deposit had not been made within thirty days of the sale. this order of the court of first instance has been reversed by the lower appellate court. the contention in this application is that the order of the lower appellate court was without jurisdiction as no deposit had been made within thirty days. in my opinion the application is untenable. as has been already stated, the judgment-debtor had, on the 20th of april 1918, stated to the sale officer before whom he by an error put in his.....
Judgment:

P.C. Banerji, J.

1. This is an application for revision and has been brought under the following circumstances. The property of the respondent-judgment-debtor was sold by auction on the 20th of March 1918.. The sale was held by the Revenue Court as sale officer under the orders of the Civil Court. On the 20th of April 1918 the judgment-debtor filed an application before the sale officer offering to deposit the decretal amount and the penalty mentioned in Order XXI, Rule 89, of the Code of Civil Procedure and prayed that the sale might be set aside. The sale officer was not competent to entertain the application and accordingly made an order that the application be forwarded to the Munsif's Court which had ordered the sale. As a matter of fact the application was not actually sent to the Munsif's Court until the 22nd of April 1918. On the 23rd of April 1918 the judgment-debtor filed an application in the Munsif's Court, in which he referred to the application presented by him on the 20th of April 1918 and stated that he had brought all the money that was required to be deposited and prayed that it should be received; The Munsif did not receive the money but passed an order to the effect that the case should be put up on the 30th of April 1918. He said in, his order that 'so far the money had not been deposited.' It is clear that had the Court received the money, it would have been deposited as the judgment-debtor distinctly said in his application that he had the money ready and he asked the Court in clear terms to receive it, On the 1st of May 1918 the money was actually deposited. The Court of first instance refused to set aside the sale, on the ground that the deposit had not been made within thirty days of the sale. This order of the Court of first instance has been reversed by the lower Appellate Court. The contention in this application is that the order of the lower Appellate Court was without jurisdiction as no deposit had been made within thirty days. In my opinion the application is untenable. As has been already stated, the judgment-debtor had, on the 20th of April 1918, stated to the sale officer before whom he by an error put in his application of that date that he had the money ready for deposit and he asked that it should be deposited. Had the application been forwarded to the Munsif's Court on the same date as directed by the sale officer, the deposit would have been made on that date, the judgment debtor having been ready to make the deposit on that date. On the 23rd of April also he stated that he had the money with him, that he was ready to deposit it and he asked the Court to receive the money. The Court, however, did not do so. Therefore, the delay in the actual deposit of the money was not due to any act on the part of the judgment-debtor. He brought the money on the 20th of April and was ready to deposit it if the Court had received it. Therefore, it must be held that although the deposit was actually made on the 1st of May he had brought it into Court on the 20th of April. Under these circumstances the lower Appellate Court was justified in setting aside the sale. I see no reason to interfere. Furthermore an order in revision is a matter in the discretion of the Court and having regard to the circumstances of this case and to the fact that no injustice has been done, I see no reason to exercise my discretion in favour of the applicant. I accordingly reject the application. I make no order as to costs.


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