- (1.) Heard Mr. S.L. Jain for the revision-petitioner and Mr. S.R. Bhandari for the non-petitioners. This case has a long history. A decree was passed against the revision- petitioner on 14.2.69. In execution of that decree the property of the revision-petitioner was auctioned and the final bid was accepted on 29.2.72. On 26.8.72 the judgment-debtor moved an application which has along been treated as an application under Order 21 Rule 89 C.P.C. On the same day a tender was filled in for deposit of the amount. The deposit was of an amount said to be in accordance with Order 21 Rule 89 CPC of 5% of the amount of the final bid. on 23.9.72 the executing court passed an order confirming the same and on 30.9.72 the sale certificate was issued. According to the judgment- debtor the sale was confirmed obivious of the application under Order 21 Rule 89 CPC or without deciding the application under Order 21 Rule 89 CPC. The judgment-debtor, therefore, filed an application for setting aside the sale on 3.10.72 which was rejected, treating it to be an application for review of the order dated 18.4.73. A revision was filed against this order and on 5.7.77 Hon'ble Mr. A.P. Sen, J. rejected it observing that it is not correct to say that the application under Order 21 Rule 89 CPC was not decided. In the words of his Lordship "the order of the execution court dated 23rd September, 1972 directing a confirmation of sale, was, by necessary implication, a composite order rejecting the application for setting aside the sale under Order 21 Rule 89 of the Code and its confirmation under Order 2 (Sic.21) Rule 92 of the Code. The order cannot be read in any other way. The revision must fail. The judgment-debtor may, however, prefer an appeal under Order 43 Rule 1 (i) of the Code, if so advised."
(2.) After the aforesaid order in the revision petition the judgment-debtor preferred an appeal seeking condonation of delay execution of limitation, as the appeal has been delayed because of the pendency of the review petition. The delay was condoned and the appeal was entertained. It was ultimately decided on 9.2.83 and the case was remanded back to the execution court directing the executing court to decide the application under Order 21 Rule 89, after hearing arguments of the parties. Curiously, in this order, the appellate court, oblivious of what was held in the revision petition by Hon'ble. Mr. A.P. Sen. J., held that an application under Order 21 Rule 89 CPC was not decided by the executing court and, therefore, it committed a grave error in confirming the sale without deciding that application. It is strange that nobody pointed out the aforesaid decision in the revision petition to the learned judge who remanded the case back.
(3.) A revision petition was preferred by the auction purchaser against the remand order. In this revision application also it was not pointed out that earlier. Hon. Mr. A.P. Sen, J. had held that the order dated 23.9.72 was a composite order deciding application under Order 21 Rule 92 CPC as well as confirming the sale. The result was that the revision petition was dismissed holding that the order challenged in the revision merely directed the executing court to decide the appellant's application under Order 21 Rule 89 CPC on the merits before confirming the sale since that application was pending on the day of the order dated 22.1.72 confirming the sale. Thereafter the executing court, on 4.2.91 decided the application under Order 21 Rule 89 CPC in favour of the Judgment-debtor and set aside the sale subject to payment of compensation to the auction-purchaser for improvements made in the property over the years. Appeals were filed against that order by the auction-purchaser as well as by the L Rs. of the Judgment-debtor. While the auction-purchaser was aggrieved by the setting aside of the sale the LRs. of the Judgment-debtor were aggrieved by the order for payment of compensation for improvement in the property. Both the appeals were decided by the District Court on 16.2.96. The appeal for the auction-purchaser was allowed and the order setting aside the sale was set aside. The appeal of the LRs, of the Judgment-debtor was rejected. Against this order, the LRs. of the Judgment-debtor have filed this revision petition.;