LUHAR BHIMJI GOVIND Vs. MANSUKHLAL KESHAVLAL
HIGH COURT OF GUJARAT
LUHAR BHIMJI GOVIND
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(1.)This is a Revision Petition filed by the original judgment -debtor against the order passed by the learned District Judge, Junagadh in Civil Miscellaneous Appeal No. 5 of 1968 setting aside the order passed by the learned Civil Judge (Junior Division), Una, below Ex. 41 in the Darkhast No. 170 of 1965(?) setting aside the auction sale under Order 21, Rule 92 (2) of the Civil Procedure Code.
(2.)The facts giving rise to this Revision Petition briefly stated are as under. Opponents Nos. 2 (a) to 2 (d) are the trustees of the Swaminarayan Temple at Una. They obtained a decree for a sum of Rs. 2,000 with running interest at 4 per cent per annum in regular civil suit No. 257 of 1964 filed in the Court of the Civil Judge (Junior Division), Una against the petitioner. They filed regular Darkhast No. 170 of 1965 for executing that decree and prayed for attachment and sale of the house of the judgment-debtor bearing S. Nos. 53 to 57 and its appurtenant house site bearing No. 51 situated in Bhavsar locality in Una. This property was subject to several mortgages in favour of Kamalshi Mulji of Una. The house was sought to be sold in auction subject to the encumbrances of the aforesaid mortgagee. The property was attached and a sale proclamation was issued by the Executing Court. The property was auctioned in court sale on 4-1-1968. The present opponent No.1 Mansukhlal Keshavlal's highest bid for Rs .4,251 was accepted by the Court. On that very day he deposited one-fourth amount of it, viz. Rs.1063. On 3-2-1968 the application Ex.41 under Order 21,Rule 89 of the Civil Procedure Code was filed by the petitioner's advocate on behalf. In that application it was stated that the claim of the decree-holders specified in the sale proclamation for which the property of the judgment-debtor was ordered to be sold, was to the tune of Rs. 2,453. It was further averred therein that after the Darkhast was filed on 1-1-1968, Rs. 500 were paid to the decree-holders and on 5-3-1966, Rs. 166-60 Ps. were deposited by him in Court in Civil Miscellaneous Application No. 4 of 1966 between the parties. After deducting the aforesaid two sums. The amount due to the decree- holders comes to Rs. 1786-40 Ps; Rs. 211-50 Ps. are deposited for payment to the purchaser at the rate of 5 per cent of the purchase price and Rs. 102-10 Ps. are being deposited to meet any other additional liability. The total amount of deposit thus comes to Rs. 2,100. It was further averred that in case it was found that he was liable to pay or deposit any further amount, he was ready to do so. He prayed that the auction sale of the property in question be set aside under Order 21, Rule 89 of the Civil Procedure Code.
(3.)The decree-holders by their application Ex. 42 and the auction-purchaser by his application Ex. 48 contended that the advocate had no authority to present such application. The decree-holders contended that they had only received the amount of Rs. 500. They had not received the amount of Rs. 166- 60 Ps. and as such the amount that was deposited on behalf of the judgment-debtor was not the full amount that the judgment debtor was required to deposit within 30 days of the sale and the time for depositing the amount cannot be extended. They had raised another contention about the sale tax dues but we are not concerned with it in this Revision Petition, as that question has been decided in favour of the petitioner. It has been also found that Mr. Acharya, the advocate for the petitioner had authority to present such application. The Appellate Court has found that there is no compliance with the conditions laid down in Order 21, Rule 89 of the Civil Procedure Code. The amount of Rs. 166-60 Ps. was deposited by the petitioner in the aforesaid Civil Miscellaneous proceeding in pursuance of the order passed by the Court for issuing interim stay of the execution of the decree in the application made by the petitioner for instalments, on condition that he deposits Rs. 150 and costs and that amount was deposited as per the order of the Court on 5-3-1966. It is evidently prior to the date of the sale proclamation. It could not be said to be the amount received by the decree-holders subsequent to the date of the sale proclamation. Furthermore it could not be at all said that that amount was received by the decree-holders at the date of the application Ex. 41. It could not be said that such amount was received by the decree-holders within the period of 30 days prescribed which would justify the judgment-debtor to make any such deduction and urge that he has complied with the condition laid down in Order 21, Rule 89 of the Civil Procedure Code. That amount was withdrawn by the decree- holders on 3-4-1968. Even the application Ex.-43 was subsequently given by the judgment-debtor, that is the petitioner for payment of that deposit amount to the decree-holders and the order has been passed by the Court to pay that amount to the decree-holders on 6-2-1968. The learned District Judge observed that taking any view of the matter, it could not be said that such amount was received within 30 days from the date of the sale. He therefore set aside the order passed by the Executing Court setting aside the sale under Order 21, Rule 92 (2), of the Civil Procedure Code and confirmed the auction sale. Being dissatisfied with that order, the present petitioner has filed this present Revision Petition in this court.
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