- (1.)THE facts giving rise to this revision application which was originally registered as Civil Exe. Second Appeal are as follows :--
(2.)FINAL decree in a mortgage suit was passed in favour of Anandilal on 28th May, 1952, against the petitioner-judgment debtor. In execution of that decree, the judgment-debtor's house was put to auction and was purchased by the auction purchaser M/s. Jankilal Gorilal Mahajan of Rampura, Kotah, through Seth puranmal of Kotah on 18th March, 1953, for Rs. 6601. On 26th March, 1953, the judgment-debtor moved the Court under Order 21, Rule 90, Civil P. C. , to set aside the said sale on the ground of material irregularities in conducting the sale. The executing Court held an inquiry in regard to the above application and it was posted for arguments on 20th February, 1954. On that date the judgment-debtor submitted an application (Ex. 2) expressing his willingness to deposit a sum equal to 5% of the purchase money for payment to the purchaser as also full amount of the decree to the decree-holder. He sought the permission of the Court to make the aforesaid payments and prayed that orders for setting aside the sale be passed. Because of this application, arguments were not heard on the application under Order XXI, Rule 90, and the Court, in the presence of the advocates for the parties recorded an order (Ex. 3) directing the judgment-debtor to deposit the decretal amount as also 5% of the purchase money on 24th February, 1954. Shri sheetal Prasad, Advocate, was present on behalf of the auction-purchaser on the aforesaid date and from Ex. 3 it appears that he did not take any objection to the above order. On 24th February, 1954, when the matter came up again before the court, Shri Sheetal Prasad, Advocate for the auction-purchaser, raised no objection to the judgment-debtor's petition except as to costs for the previous, i. e. , under Order 20, Rule 90, Civil P. C. The judgment-debtor sought further time to deposit the money on 4th March, 1954, which the Court granted, vide Ex. I on 4th March 1954. Judgment-debtor again sought time to deposit the amounts to which the decree-holder as well as the advocate for the auction-purchaser had no objection and the Court directed the judgment-debtor to deposit Rs. 412/9/-on account of stamp duty on the purchase money i. e. , Rs. 6601, and 5% for compensation amount amounting to Rs. 330, with Rs. 63/2/3 as costs of the application under Order XXI, Rule 90, vide Ex. 6. The case was adjourned to 8th march 1954. On 9th March, 1954, Shri Sheetal Prasad, Advocate for the auction-purchaser, declined to accept the amount of compensation with costs tendered to him by the judgment-debtor. As the Court time had become almost over, the case was adjourned to 11th March, 1954, vide Ex. 5. On this latter date, court-fee stamps of Rs. 412/9, and Rs. 330 plus Rs. 63-2-3, for compensation to be paid to the auction-purchaser, were deposited in the Court. On this, the Court dismissed the judgment-debtor's application under Order XXI, Rule 90 but allowed the other application dated 20th February, 1954, purporting to act under Order XXI, Rule 89, Civil P. C. , and directed the sale to be set aside, vide Ex. 4. It appears from ex. 4 that when this order was passed no one was present on behalf of the auction purchaser. It is also not clear from the order how the decree was satisfied and it is not the case of the judgment-debtor that he had deposited the decretal amount in the Court on that date. His case, however, is that he had made full satisfication of the decree out of Court and the decree-holder had also certified full satisfaction of the decree in the Court and an order to that effect was recorded in the execution file.
(3.)AGAINST this order, auction-purchaser preferred an appeal to this Court, being civil execution first appeal No. 10 of 1954, which was disposed of an 20th April, 1959. It was contended on behalf of the auction purchaser in that appeal that no action could have been taken by the executing Court on the application of the judgment, debtor made under Order 21, Rule 89, Civil P. C. , on 20th February, 1954, as it was presented beyond the prescribed period of limitation. The learned chief Justice, who heard that appeal accepted the above contention, but on behalf of the judgment-debtor it was urged that the application dated 20th February, 1954, was made in the proceedings under Order 21, Rule 90, and no independent application was made under Order 21, Rule 89. It was urged that the aforesaid deposits were made with the consent of the parties and no objection was raised on behalf of the auction purchaser to set aside the sale if the judgment-debtor made such deposit. As the order of the Court below was not very clear as to what the position actually was whether there was any separate proceeding under Order 21, rule 89, Civil P. C. , or the application for making the deposit in the proceedings was made under Order 21, Rule 89, Civil P. C. , itself and that it was in the nature of settlement by common consent of the parties that the deposit was allowed to be made, the learned Chief Justice sent the case back to the executing Court for a clear finding on the point mentioned above holding that if the order was passed by common consent of the parties, then the order dated March 11, 1954, passed by the learned Civil Judge will stand, otherwise the order will have to be set aside and the sale confirmed. After the order of remand, the judgment-debtor and the auction purchaser examined their respective advocates namely, Shri Tejmal Gupta and Shri Sheetal Prasad. The statement of Shri Rabi Bhushan, Clerk, who had written Exs. 1 to 6 on the Court's record, was also recorded. The learned Civil judge, after considering the material on the record, came to the conclusion that the judgment-debtor was directed to make the deposit with the consent of the parties and no independent application under Order 21, Rule 89 was made. In view of this, he ordered the sale to be set aside.
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