BEHARI LALL Vs. GOPAL KRISHNA PATHAK

JUDGEMENT

(1.) This is a decree-holder's application in revision, directed against the concurrent orders o the Courts below, setting aside the sale held in execution of a decree under Order XXI, Rule 89, of the Code of Civil Procedure.

(2.) The facts are like these. In execution of a money decree, obtained by the petitioner, against the judgment-debtor opposite party, certain properly was sold on the 26th November, 1962. The defendant had preferred Second Appeal No. 185 of 1962 in this Court. In this Second Appeal, confirmation of the sale was stayed by an order of this Court made on the 17th December, 1962, on the condition of the defendant's depositing Rs. 792/- in cash in the Court of the Execution Munsif Patna, within one month from the date of the order. The said sum of Rs. 792/- was deposited by the judgment-debtor on the 22nd December, 1962. Eventually the second appeal was dismissed by this Court on the 4th April, 1967. With the dismissal of the second appeal, ft is plain, the order staying the confirmation of the sale stood vacated. Thereafter, on the 5th April, 1967, the judgment-debtor filed a petition in the Execution Court, stating that he had already deposited a sum or Rs. 792/- in pursuance of the order of the High Court and since his second appeal had been dismissed by the High Court, a challan for the deposit of the balance amount may be passed. The challan was accordingly passed and the balance of the money requisite for setting aside sale under Order XXI, Rule 89, of the Code of Civil Procedure, was deposited on the 6th April, 1967. Thereupon the execution Court set aside the sale: The appeal filed by the petitioner in the lower appellate Court has failed. He has come up in revision to this Court.

(3.) The deposit, undoubtedly, was, on the facts and in the circumstances of the case, within thirty days of the date of the sale. The period when the stay order passed by the High Court was in operation has got to be excluded from the period of thirty days; as it is a well settled principle of law that an order of stay or injunction of the kind keeps in abeyance the running of the period of limitation. Excluding that period, it is plain, that the final deposit made on the 6th April, 1967, was well within thirty days. Learned counsel for the petitioner, in all fairness, did not combat this position any seriously.