TaxTMI 
TaxTMI 
2003 (12) TMI 670
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.... The final bid was offered by respondent No. 1 in Court on 28/08/1992. On 25/09/1992 the Petitioner-Judgment Debtor paid the entire decretal amount together with the cost to the Respondent No 2 -Decree Holder accompanied by memorandum of objections for confirmation of sale. A memo was also filed praying to close the execution proceedings. On 30/10/1992 another Memo was filed in the Executing Court reporting the payment of the decree amount. Then the executing Court directed the Petitioner - Judgment Debtor to pay solatium to the Respondent No. 1 - Auction Purchaser. Executing Court also noted that the Respondent No. 1 - Auction Purchaser was not ready to accept the solatium amount. In the meanwhile, on 13/11/1992 Respondent No 1 -Auction Pu....
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....question of adequacy of the sale price is irrelevant as it is outside the scope of Rule 89 of Order 21. For these reasons the revision petition was dismissed. This judgment is impugned before us. 4. The only question that requires our consideration in this case is whether the setting aside of sale by the executing Court is correct or not. Under Order 21 Rule 89(1) of CPC an application to set aside sale under Rule 89(1) can be filed. The said provision reads as under: Rule 89, Order 21: Application to set aside sale on deposit: - (1) Where immovable property has been sold in execution of a decree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for ....
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.... to set aside sale and his contention that the deposit of money itself could be treated as an application to set aside sale was rejected. Diametrically, opposite view has been expressed in several decisions which we may briefly notice. 7. In Jyothish Chandra Skidar and Ors. v. Surendra Nath Das and Anr., AIR1939Cal153 , the Court treated Challan deposited by the Judgment Debtor under Rule 89 as an application. In Mahaboob Khan v. Majid Husain, AIR1939All241 , the tender for deposit or money in Court itself was held to be an application for the reason that the presentation of the tender form itself clearly shows the intention of the Judgment Debtor to set aside the sale. Here the Court also found that Rule 89 only insist for two things - ....
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....on to set aside sale. Court noted that though Order 21 Rule 89 CPC requires an application to be made for setting aside the sale, nothing is stated in the rule regarding the mode of application and then held that purshis contains an implicit prayer for setting aside the sale and the absence of a formal application does not amount to non-compliance of the provision. In Behari Lall v. G.K. Pathak AIR1972Pat347 , the High Court ruled that "...application by Judgment Debtor whereby a prayer was made for passing the challan for, deposit of requisite money, by necessary implication there was a prayer to do justice by setting aside the sale." Similar view was taken in Pratap Kishore v. Rama Chandra AIR1969Ori278 and in Durga Prasad Singh v. Ram La....
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.... to be noted that the Rule does not provide that the application in a particular form shall be filed to set aside the sale. Even a memo with prayer for setting aside sale is sufficient compliance with the said Rule. Therefore, upon the satisfaction of the compliance of conditions as provided under Rule 89, it is mandatory upon Court to set aside the sale under Rule 92. And the Court shall set aside the sale after giving notice under Rule 92(2) to all affected persons. 10. In the case on hand, it is not disputed that within the stipulated period of one month from the date of final bid in Court, the Petitioner -Judgment Debtor paid the decree amount to the Decree Holder and also filed a memo for setting aside the sale in the form of object....