MST HIRANIA Vs. SM RAM PIARI

JUDGEMENT

(1.) Some property belonging to the applicants Tikamsingh and Jaipal Singh was sold in execution of a decree against them. The sale took place on 23rd August 1947. The judgment-debtors desired to have the sale set aside under Order 21, Rule 89, Civil P. C. For that purpose they had to deposit the decretal amount and five per cent. extra for payment to the auction purchaser, and to make an application for setting aside the sale on or before 22nd September 1947. It was the Court of the Sub-Divisional Officer, Koil, in which the deposit was to be made and to which the application was to be made. The Sub-Divisional Officer did not hold his Court either on 22nd September 1947, or on the following day. The money could not, therefore, be deposited in that Court on those two dates, nor could an application be made on those dates. A tender was, however, delivered by the judgment-debtors' pleader to some officer of that Court on 23rd September 1947 as appears from the order sheet of that date. The order sheet is, however, not signed by the Presiding Officer showing that he was not present in Court on that date. So that no orders could be passed upon it on 23rd September 1947. The tender was returned to the judgment-debtor's pleader on 24th September 1947, and the money was deposited that very day. An application for setting aside the sale was made not by the judgment-debtors but by Mt. Hirania, the mother of judgment-debtor Tikam Singh.

(2.) An objection was taken on behalf of the auction-purchaser that the deposit not having been made within time, the sale could not be set aside. The learned Sub-Divisional Officer stated in his order, that due to law and order work no Court was held on 22nd September 1947, or even on the following day, and, relying on a ruling of the Board of Revenue, he came to the conclusion that the judgment-debtors could not be held responsible for the delay in the making of the deposit and ordered the sale to be set aside.

(3.) This order has been reversed by the lower appellate Court. The lower appellate Court thought that the ruling of the Board of Revenue was inapplicable to the facts of the case. The lower appellate Court discovered another point against the judgment-debtors, namely, that no application for setting aside the sale was made by the judgment-debtors or by any person interested in the property that was sold by auction.