KALLYANI AMMA MEENAKSHI AMMA Vs. NARAYANAN NAIR
HIGH COURT OF KERALA
KALLYANI AMMA MEENAKSHI AMMA
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(1.) No error of law. The appellant judgment debtor's application, statedly under O.21 R.90 of the Code, was admittedly late by a day, and, obviously S.5 of the Limitation Act can have no application. The attempt now made to attract Art.137 rather than Art.127 of the Limitation Act by alleging a breach of sub-r.(1) of R.72 of O.21 must fail for two reasons. First, because this allegation is made now for the first time in the course of the arguments there is nothing in the application or in the memorandum of appeal to the court below or to this court which even remotely suggests that no leave was obtained by the decree holder respondent before he bid for and purchased the property concerned in the execution sale. Secondly because, even an application under sub-r.(3) of R.72 assuming the application in this case to be an application under that sub-rule which it clearly is not would attract Art.127. That sub-rule, which says that where there has been a breach of sub-r.(1) the court may, if it thinks fit, set aside the sale on application by a person interested, makes it apparent that the judgment debtor cannot regard the sale as void and say that his application is one to have it so declared and not one to set aside the sale so as to attract Art.127. Clearly the sale is good until it is set aside by an order made under sub-r.(3).
(2.) All this apart, this second appeal does not lie since, whether the order dismissing the judgment debtor respondent's application be one under R.92 of O.21 (which it really is) or one under R.72 (as is now sought to be made out) an appeal lies against it under O.43 R.(1)(j) so that the order is not a decree within the meaning of S.2(2) of the Code, coming as it does within exclusion (a) thereof.
(3.) I dismiss this appeal with costs.;
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