2014 (4) TMI 1048

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....med the Court Sale by issuing Certificate of Sale in favour of the auction purchaser, the Appellant. Against the order dated 18.12.2004 passed by the Executing Court dismissing his application under Order XXI Rule 89 of the Code of Civil Procedure (CPC) the judgment-debtor preferred an appeal being Miscellaneous Appeal No.1/2005 before Civil Judge (Sr. Division). That appeal was dismissed on 26.7.2006 with a finding that the appeal was not maintainable. The judgment-debtor then preferred Writ Petition No.10550 of 2006 before the High Court of Karnataka, Circuit Bench at Gulbarga to challenge the order of the Executing Court as well as of the Appellate Court. The High Court, by the order under appeal dated 18.2.2010, allowed the writ petitio....

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....re the Executing Court. As noticed earlier, judgmentdebtor's Miscellaneous Appeal was dismissed as not maintainable. In the Writ Petition preferred by him, the High Court agreed that Miscellaneous Appeal was not maintainable but primarily because the judgment-debtor, on an opportunity given by the Writ Court, had deposited Rs. 25,000/- over and above the amount for which the property was sold, impugned order was passed to remit the matter back to the Executing Court for fresh disposal of the application under Order XXI Rule 89 of the CPC with liberty to the writ petitioner to place available materials before the Executing Court to show that the value of the property is more than the price obtained in the Court auction. 6. According to le....

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....ich such an application should be made. In absence of any separate period prescribed for making the deposit, as per judgment of the Constitution Bench in the case of Jammlu Ramulu (supra) the time to make the deposit and that for making the application would be the same. 8. In the case of Ram Karan Gupta (supra), it has been held, after considering the Constitution Bench judgment and other relevant case laws, that deposit of the requisite amount in the court is a condition precedent or a sine qua non to application for setting aside the execution of sale and such an amount must be deposited within the prescribed time for making the application otherwise the application must be dismissed. 9. In view of the settled law on the issue as n....