MATHAI VARKEY Vs. VARUGHESE CHACKO
HIGH COURT OF KERALA
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(1.) SRI S. Subramonia Iyer, the learned counsel for the appellants, has raised a rather interesting question of law to attack the judgment of the first appellate court reversing the order that was passed by the execution court.
(2.) THE facts leading to this second appeal are not in dispute and could be briefly stated as follows:-- The decree schedule property was purchased by the decree-holder in auction in execution of the decree on 7-12-1965. After disposing of a petition filed by the judgment-debtors under Order 21, Rule 90 of the Code of Civil procedure, the execution court confirmed the sale on 30-6-1966 C. M. A. No. 56 of 1966 was filed in the District Court by the appellant on 27-5-1966 questioning the correctness of the order passed on the petition for setting aside the sale filed by him. That C. M. Appeal was ultimately dismissed. Thereafter, I. P. No. 3 of 1966 was filed by the creditors of the appellant, and during the pendency of those proceedings the execution of the decree was stayed till December 1966. Against the decision in the I. P. proceeding an appeal in A, S. No. 120 of 1968 was filed in the District Court and during the pendency of that appeal there was again a stav of the execution of the decree till 26-3-1969. On the motion of the respondent the stay granted in A. S. No. 120 of 1968 was vacated, and that gave rise to C. R. P. No. 602 of 1969 filed by the appellants before this Court. During the pendency of that civil revision petition this Court had granted stay till 30-6-1969. Thereafter on 23-12-1971 the resp9ndent filed E. A. 1. 621/71 for condonation of delay and acceptance of the stamp paper for sannad (sale certificate ). This petition was dismissed by the execution court, but was allowed by the first appellate court; hence this second appeal,
(3.) THE main point urged by the learned counsel for the appellant is that Order 21, rule 85 requires that the amount required for the general stamp paper for the certificate under Rule 94 shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the date of the sale of the property, and that this being a mandatory provision the confirmation granted by the execution court on 30-6-1966 is a nullity, and therefore there is in effect no sale and the judgment of the first appellate court directing the issue of sale certificate is illegal and is bound to be set aside.;
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