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Murugappa Asari Vs. Shanmuga Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1925Mad909
AppellantMurugappa Asari
RespondentShanmuga Mudaliar and anr.
Excerpt:
- .....throughout believed that his application under order 21, rule 89 had been granted. i think the district munsif finds (so the district judge understands him) that there was an oral application within the time prescribed by the law. if there was such an application how was it disposed of? we are merely left to conjecture as to what has happened. the learned district munsif says : 'bviously the petitioner was directed to put in a written application.' this is merely a surmise on his part. i um disposed to think that an oral application was made but owing to an oversight the district munsif did not deal with that application. indeed there is no reason for supposing that the application was rejected. it is not pretended that the amount deposited is less than the money required to be.....
Judgment:

Venkatasubba Rao, J.

1. The properties were sold on the 22nd of September 1920. The defendant, within 30 days from then deposited in Court the requisite amount for getting the sale set aside under Order 21, Rule 89, C.P.C. He swears that he made an oral application under that rule and that he was under the impression that in due course the sale would be set aside. Apparently no order was made on his application. The sale was confirmed and the auction-purchaser took possession of the property. The delivery to him was on 30th August 1921, and on 10th September 1921 the defendant complained to the Court that the property had been taken possession of by the purchaser and that he (the defendant) throughout believed that his application under Order 21, Rule 89 had been granted. I think the District Munsif finds (so the District Judge understands him) that there was an oral application within the time prescribed by the law. If there was such an application how was it disposed of? We are merely left to conjecture as to what has happened. The learned District Munsif says : 'bviously the petitioner was directed to put in a written application.' This is merely a surmise on his part. I um disposed to think that an oral application was made but owing to an oversight the District Munsif did not deal with that application. Indeed there is no reason for supposing that the application was rejected. It is not pretended that the amount deposited is less than the money required to be deposited and if the application had really been made it is not suggested that it was made out of time. I must, therefore, take it that forgetting that there was such an application the District Munsif made an order under Rule 92(1). He ought to have made an order under Rule 92(2). It was imperative on him to make the order. He had no discretion at all. In these circumstances the result is obvious. The order confirming the sale is nullity and I declare it to be a nullity. I propose to make the order which the District Munsif ought to have made, that is, I set aside under Order 21, Rule 92(2) the sale that was hold. The District Munsif will dispose according to law of the amount that now stands to the credit of this suit.

2. As regards costs, I do not propose to direct the respondent to pay the costs of this application. The fault was clearly the fault of the Court and I do not think that the auction-purchaser is to blame for what has happened. Bach party will, therefore, bear his own costs throughout.


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