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Durga Prasad Vs. Babu Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All195; 67Ind.Cas.321
AppellantDurga Prasad
RespondentBabu Lal and ors.
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 89 - tender of money with application to set aside sale--tender, whether application--limitation act (ix of 1908), section 4, applicability of - .....closed for the vacation on the 16th september 1920 and re opened on the 25th october 1920. on that date an application was made by the judgment debtor for setting aside the sale. he filed with the application a tender offering the amount mentioned in the proclamation of sale with the compensation payable to the auction-purchaser. but his tender could not be signed by the presiding judge of the court concerned that day and the actual payment of the money was not, therefore, made till the next day, though the applicant was ready to pay it on the day on which the tender was made. the court below accepted the application and set aside the tale.2. the learned counsel who appears for the auction purchaser contends that the deposit should have been made within thirty days from the date of the.....
Judgment:

Kanhaiya Lal, J.

1. This is an application in revision for the discharge of an order setting aside a sale held in execution of a decree under Order. XXI, Rule 89 of the Code of Civil Procedure. The sale took place on the 25th August 1920. The Civil Courts closed for the vacation on the 16th September 1920 and re opened on the 25th October 1920. On that date an application was made by the judgment debtor for setting aside the sale. He filed with the application a tender offering the amount mentioned in the proclamation of sale with the compensation payable to the auction-purchaser. But his tender could not be signed by the presiding Judge of the court concerned that day and the actual payment of the money was not, therefore, made till the next day, though the applicant was ready to pay it on the day on which the tender was made. The Court below accepted the application and set aside the tale.

2. The learned Counsel who appears for the auction purchaser contends that the deposit should have been made within thirty days from the date of the auction-sale and that the judgment-debtor was not entitled to the benefit of Section 4 of the Indian Limitation Act (IX of 1908) so as to allow him to make the same after the re-opening of the Court. The terms of Section 4 are wide enough to cover an application of every kind, which a man is tailed upon to make in Court. An application asking for the setting aside of the sale under Order XXI, Rule 89, of the Code of Civil Procedure had been duly made on the date the Court re-opened. It was accompanied by a tender which in itself was an application offering to pay the money required as a preliminary to the setting aside of the sale, Section 4 would govern that application also. The Court below rightly held that the delay in tie payment was not due to any fault of the judgment-debtor. The application, therefore, fails and is dismissed with costs.


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