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Deokishan Vs. Jagan Nath and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 340 of 1965
Judge
Reported inAIR1967Raj148
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rules 89, 90 and 92
AppellantDeokishan
RespondentJagan Nath and anr.
Appellant Advocate C.D. Mundra, Adv.
Respondent Advocate Mool Chand, Adv. for Respondent No. 1
DispositionPetition allowed
Excerpt:
- - 5. the order of the appellate court is clearly without jurisdiction, the judgment-debtor had not moved any application under order 21, rule 89 or order 21, rule 90 c......filed an execution application claiming one-third the decretal amount as her share. the judgment-debtor filed an objection on 22-10-62 in which various allegations were made. this objection was dismissed after a hearing on 1-2-63 and notice under order 21, rule 66 was issued. ultimately on 19-10-63 it was ordered that the property be sold on 4th, 5th and 6th december 1963. 3. on 6th december 1963 the judgment debtor moved an application before the executing court stating that the share of the decree holder was one-fourth and praying for the postponement of the sale in order to enable him to make arrangement to obtain money for the payment of the amount due to smt. mohini. this application was put up before the additional munsif who was incharge on that day as the munsif had gone to.....
Judgment:
ORDER

Jagat Narayan, J.

1. This is a revision application by the auction purchaser against an order of the appellate court setting aside an auction sale. The application has been contested on behalf of the judgment-debtor.

2. Jagan Nath mortgaged a house in favour or Smt. Harkha. A decree was passed in favour of four of her legal representatives including Smt. Mohini, who filed an execution application claiming one-third the decretal amount as her share. The judgment-debtor filed an objection on 22-10-62 in which various allegations were made. This objection was dismissed after a hearing on 1-2-63 and notice under Order 21, Rule 66 was issued. Ultimately on 19-10-63 it was ordered that the property be sold on 4th, 5th and 6th December 1963.

3. On 6th December 1963 the judgment debtor moved an application before the executing court stating that the share of the decree holder was one-fourth and praying for the postponement of the sale in order to enable him to make arrangement to obtain money for the payment of the amount due to Smt. Mohini. This application was put up before the Additional Munsif who was incharge on that day as the Munsif had gone to give evidence in some case but he did not postpone the sale. The sale Amin declared the sale in favour of Deo Kishan applicant on 6-12-68 for Rs. 1850. It may be mentioned here that no allegation was ever made by the judgment debtor that the bid made by Deo Kishan for the house was inadequate. The Sale Amin submitted his report before the Additional Munsif on 7-12-63. He directed that these papers may be pat up before the Munsif on his return on 14-12-63.

On 14-12-63 when the papers were put up before the Munsif, the judgment-debtor filed an objection petition. It was stated in it that the snare of Smt. Mohini was one-fourth and that he was willing to pay the amount due to her. A copy of this objection petition was handed over to the decree-holder who was asked to file a reply on 11-1-64. On 11-1-64 the decree-holder intimated that he did not wish to file any reply in writing. The case was posted for arguments on 25-1-64. On 25-1-64 arguments were not heard and the case was posted for 8-2-64. On that day after hearing the parties the learned Munsif passed an order confirming the sale. It was stated in this order that the objection filed by the judgment-debtor had no connection whatsoever with the auction sale and that he had not challenged the auction sale. He also stated that the share of the decree-holder was one-fourth as was admitted by the decree-holder.

4. Against the above order the judgment-debtor preferred an appeal under section 47 C. P. C. The appellate court passed an order setting aside the sale on condition that the judgment-debtor deposited the decretal amount, execution expenses and a sum calculated at 6 per cent of the purchase price. The only reason given for this order is that the sale should not have been confirmed as no date for confirming it had been fixed and as the judgment-debtor was willing to deposit the decretal amount.

5. The order of the appellate court is clearly without jurisdiction, The judgment-debtor had not moved any application under Order 21, Rule 89 or order 21, Rule 90 C. P. C. The appellate court was therefore not competent to set aside the sale. The only objection of the judgment-debtor was that the share of Smt. Mohini was one-fourth. This was admitted by the decree-holder. The judgment-debtor had also stated that he was willing to deposit the decretal amount, but he had not made any application as contemplated by Order 21, Rule 89 for setting aside the sale. Such an application is to be made after depositing the decretal amount along with a sum equal to 5 per cent of the purchase money.

6. Further it was not necessary for the executing court to fix a date for confirmation of sale. The Sale Amin had declared the sale in favour of Deo Kishan and his report was put up before the learned Munsif on 14-12-63. No objection had been raised that the bid was inadequate. Nor did the court suo motu consider that the bid was inadequate. It passed no order refusing to accept the sale on the ground of inadequacy of the price. In these circumstances the court will be deemed to have accepted the bid of Deo Kishan and was entitled to confirm the sale after 30 days as no objection under Order 21, Rule 90 had been filed before him.

7. I accordingly allow the revision application, set aside the order of the appellatecourt and uphold the order of the executingcourt confirming the sale in favour of Deo Kishan. In the circumstances of the case, Ileave the parties to hear their own costs ofthis revision application


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