J.L.Sinha, J. - (1.) THIS is a First Appeal From Order dated 1-5-1976 passed by the Civil Judge. Azamgarh, in execution proceedings.
(2.) THE facts leading up to this appeal can briefly be stated as under : Respondent No. 1 obtained a decree against the appellants for Rupees 28,585.85 from the Calcutta High Court. In execution of that decree, a house, shops and bhumidhari plots belonging to the appellants were attached. The auction sale held in respect of bhumidhari plots was cancelled, while the house and shops were sold for Rs. 1,44,000.00 on 8-1-1976. Thereafter on 4th February, 1976, the appellants filed objections under Section 47 C.P.C. On 6th February, 1976, the appellants filed an application under Order XXI, Rule 89, C.P.C. for setting aside the auction sale, and deposited the entire amount as required under the said provision of law. The objections under Section 47, C.P.C. were dismissed as not pressed on 17th of April, 1976. The application under Order XXI, Rule 89 was rejected by the court below on the ground that the objections purporting to have been filed by the appellants under Section 47, C.P.C. were in effect objections under Order XXI, Rule 90, C.P.C. and, in view of the provisions contained in sub-R. (2) of Rule 89 of Order XXI, no application under Order XXI, Rule 89 for setting aside the sale could be made while the application under Order XXI, Rule 90 was pending. In the opinion of the court below, the application under Order XXI Rule 89 could be deemed to have been made only on 17-4-1976, when the objections purporting to be under Section 47, C.P.C. were got rejected by the appellants. The limitation for filing the application under Order XXI, R. 89, C.P.C. having expired before it, the application was barred by time.
(3.) ORDER XXI, Rule 89 (2) reads as follows: "Where a person applies under Rule 90 to set aside the sale of his immoveable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this Rule." ;