- (1.) THIS First Miscellaneous Appeal is at the instance of the heirs of a judgment-debtor in the proceedings for execution arising out of a decree for sale in a suit relating to Mortgage and is directed against Order No. 171 dated 26th March, 2002 passed by the learned Executing court by which an application under Order 21 Rule 89 of the Code of Civil procedure filed by the original judgment-debtor has been rejected.
(2.) BEING dissatisfied, the heirs and legal representatives of the judgment-debtor have come up with the present appeal.
(3.) THE following facts are not in dispute : (a) The decree-holder obtained a decree for sale against the predecessor-in-interest of the appellants for a sum of Rs. 16,425/- with costs and filed Title Execution Case No. 51 of 1985 for recovery of Rs. 27,310/-by sale of the house property of the judgement-debtor being Premises no. 17, Roy Bagan Street, Calcutta-700 006. (b) In the said title execution case, the judgement-debtor filed an application under section 47 of the Code of Civil Procedure thereby challenging the said decree as a nullity. Such application under section 47 gave rise to the Miscellaneous Case No. 779 of 1989. In the said Miscellaneous Case No. 779 of 1989, the judgement-debtor filed an application for stay of the sale which was fixed on 4th August, 1989 and the Executing Court on 3rd August, 1989 was pleased to pass an order of stay of sale subject to deposit in the Executing Court all the decretal dues and the costs. (c) The Executing Court, however, by Order No. 51 dated 4th August, 1989 vacated the earlier order of stay on the ground that the alleged deposit made by the judgment-debtor was not in terms of Order no. 49 dated 3rd August, 1989 and accordingly, the sale had taken place on 4th August, 1989. (d) On 26th August, 1989, the judgement-debtor in the pending execution case, filed an application under Order 21 Rule 89 of the Code of Civil procedure for setting aside the sale and such application gave rise to the Miscellaneous Case No. 864 of 1989. Although the said application was described as an application under Order 21 Rule 89 of the Code of Civil Procedure, it appears that the judgement-debtor, in the said application, disputed the legality of the sale held on 4th August, 1989 and at the same time, did not deposit "the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of proclamation of sale, have been received by the decree-holder" along with 5 per cent of the purchase-money, as required under Order 21 rule 89 of the Code of Civil Procedure. In the said application, the judgement-debtor merely prayed permission for deposit of 5 per cent of the purchase-money and further amount of Rs. 9,228/- and rs. 813/- being costs of the proceedings with a prayer that the various other amounts deposited in the proceedings under section 47 of the code of Civil Procedure should be adjusted. ;