D.S.Sinha - (1.) THIS petition, under Article 226 of the Constitution of India, is directed against the order and judgment dated 6th September, 1984, passed by the IX Addl. District Judge, Moradabad, in Civil Revision No. 45 of 1984, arising out of the Execution Case No 16 of 1983, setting aside the judgment and order dated 24th November, 1983, passed by the executing court whereby it declined to set aside the sale of a Kothari in favour of the decree-holder, the petitioner) before this Court.
(2.) THE relevant facts, as they emerge from the pleadings in the petition and the judgments of the executing court and of the learned Addl. District Judge, are these. A proclamation in respect of the disputed Kothari, under Order XXI Rule 66 of the Code of Civil Procedure, 1908, hereinafter called the Code, was issued on 31st May, 1983 filing 25th August, 1983 as the date for sale by auction. On 24th August, 1983 the judgment-debtors, the respondents no. 2 and 3 before this Court, approached the executing court praying for stay of the proposed auction sale on the ground that the proceedings for sale were fraudulent. The application was opposed by the petitioner. After considering the application and the objection of the petitioner, the executing court, by means of its order dated 25th August, 1983, ruled that the sale could be stayed only if the judgment-debtors deposited a sum of Rs. 233/- in court. The judgment-debtors did not satisfy the requirement of making deposit of the aforesaid amount of Rs. 233/-. The auction of the disputed Kothari was, therefore, held on 25th August, 1983, as scheduled. It appears that the decree-holder also participated in the auction and his bid was accepted. The sale of the Kothari in favour of the decree-holder was confirmed by the executing court by means of the order dated 24th September, 1983. Thus the sale became absolute as envisaged under Rule 92 of Order XXI of the Code.
(3.) ON 26th September, 1983, one of the judgment-debtors, namely, Abid Ali, moved an application informing the executing court that the entire decretal amount had been deposited in the court and praying for setting aside of the sale of the Kothari and dismissal of the execution application. A copy of this application is to be found on record before this court as Annexure-3 to the petition. The application does not disclose the date of making the requisite deposit under Rule 89 of Order XXI of the Code. However, from the narration of the facts in the impugned judgment, the date of deposit appears to be 26th September, 1983. To the application of the judgment-debtors the petitioner-decree-holder filed an objection dated 19th October, 1983, a copy where of is IT Annexure to the petition. The petitioner pleaded that the sale of the Kothari, having already been confirmed on 24th September, 198B, could not be set aside. Alternatively, it was submitted that the requisite deposit was not made within thirty days which was a condition precedent under Rule 89 read with Rule 92 of Order XXI of the Code Executing Court, after examining the respective case of the judgment- debtors and of the decree-holder, held that the application of the judgment- debtors was not maintainable in as much as the requisite deposit under Rule 89 of Order XXI of the Code was not made within the prescribed period, and, further that the sale, having already been confirmed on 24th September, 1983 was no longer open to be set aside. Executing court noted an additional factor, namely, the lapse on the part of the judgment-debtors to deposit the sum of Rs. 233/- as ordered on 25th August, 1983, on the application made by them. The court was of the view that the judgment- debtors did not deposit the decretal amount deliberately and allowed the sale proceedings to go on. They were, therefore, not entitled to have the sale set aside. The executing count, therefore, by means of its order and judgment dated 24th November, 1983, rejected the application of the Judgment-debtors for setting aside (he sale of the Kothari.;