- (1.) SUDHIR Narain, J. The petitioners have challenged the order, dated 9-9-1994, passed by respondent No. 3, whereby the auction sale, dated 23-5-1985 has been set aside.
(2.) THE facts in brief are that Ramadhar, respondent No. 2 obtained a decree. He filed execution case No. 10 of 1983 against the judgment-debtor, respondent No. 1. After filing the execution application respondent No. 1 had deposited the decreetal amount in seven instalments and the last date of its payment was 26-6-1985. Before the last date of payment, no property of respondent No. 1 was auctioned on 23-5-1985. THE judgment-debtor-respondent No. 1 filed application (57-C) before the Executing Court stating that he had deposited the entire decretal and penalty amount, as provided under Order XXI, Rule 89, C. P. C. the auction sale should be set aside. Ho further prayed that the tender forms along with application already filed by him be treated application for setting aside the sale as required under Order XXI, Rule 18, C. P. C. THE petitioners filed objection to the said application. THE Civil Judge rejected the application on 21-4-1987. Respondent No. 1 filed Misc. Civil Appeal No. 150 of 1987 which has been allowed by respondent No. 3, holding that the judgment-debtor-respondent No. 1 complied with the conditions prescribed under Order XXI, Rule 89, C. P. C. and the auction sale dated 23- 5-1985 was liable to be set aside. This order has been challenged in this writ petition. Learned Counsel for the petitioners urged that the judgment debtor-respondent No. 1 has to comply with two conditions before the auction sale is to be set aside. Firstly, he should have deposited the amount as provided under Order XXI, Rule 89, C. P. C. and secondly, he should have filed an application to set aside the sale within 30 days. Respondent No. 1 failed to comply both these conditions and respondent No. 3 acted illegally in setting aside the sale, under Order XXI, Rule 89, C. P. C. The learned Counsel for the petitioner urged that the filing of the application is the condition precedent under Order XXI, Rule 89, C. P. C. for setting aside the auction sale. He placed reliance upon Ram Avtar v. Sheo Piarey Lal Pandey and another, AIR 1925 Oudh 411, wherein the Court held that an application either written or oral is necessary for the setting aside of a sale under Order XXI, Rule 89, C. P. C. The same view was expressed in Pachiayae v. Vallimuthu Velam, AIR 1925 Mad 639, and Dhari Jena v. Gauranya Charan Sahu, AIR 194 Pat 87. In these cases there were no applications written or oral. The intention under Order XXI, Rule 89 is clear that the judgment debtor must express to the Court that he seeks setting aside of the auction sale.
(3.) IN Mamood Khan v. Shaikh Mazid Hussain, AIR 1939 All 241, a Division Bench of this Court took the view that presentation of a form of tender for deposit of sale price and five per cent as required by Order XXI, Rule 89 to a Court for signature, must be deemed to be an application, not only for the deposit of the purchase money, but also to have the sale set aside and an oral or written application for setting aside the sale is not strictly neces sary. Although the form of tender does not use the actual words that the sale should be set aside but it is clearly the intention of a person presenting the form to a Court for signature that the deposit is being made for that purpose. The decision of Madras High Court in the case of Pachiayae (supra), was considered. The same view was followed in Kishan Lan v. Babuain Harden Kaur and another, AIR 1945 Oudh 45 and Mst. Hirania v. Smt. Ram Piari, AIR 1950 All 867. The Bombay High Court in the case of Marutishidalappa v. Shivappa Mallappa Chaugule and another, AIR 1967 Bom 39, followed the decision of Allahabad High Court, referred to above and distinguished the case of Pachiayae v. Vallimuthu Velam, AIR 1925 Mad 639 and Amrit Lal Narsi Lal v. Sadashiv, AIR 1944 Bom 233. It was held that filing of tender contains an implicit prayer for setting aside the sale and absence of formal application does not amount to a non-compliance of the provisions of Order XXI, Rule 89, C. P. C. In the present case the auction had taken place on 23-5-1985. Respondent No. 1 had submitted the last tender form on 30-5-1985. In view of the decisions referred to above, it is clear that the submission of the tender form impliedly contained the prayer for setting aside the sale. Respondent No. 1, to avoid any complication, moved application on 9-5-1986 (57-C) for setting aside the sale and further prayed that the tender form submitted alongwith the application may be treated as an application for setting aside the sale as required under Order XXI, Rule 89, C. P. C. The respondent No. 1 has submitted the tender form along with an application and he could make necessary amendment in the application to clarify the position. The intention of respondent No. 1 was clear when he submitted the application to deposit the money along with tender form with a view to get the auction sale set aside and the prayer for a setting aside the sale was implicit therein.;