Patna High Court
Behari Lall vs Gopal Krishna Pathak on 19 January, 1972
Equivalent citations: AIR1972PAT347, AIR 1972 PATNA 347
Author: N.L. Untwalia
Bench: N.L. Untwalia
ORDER N.L. Untwalia, J.
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.
4. Learned counsel, however, strenuously argued that there was no prayer made in the petition filed by the judgment-debtor on the 5th April, 1967, for setting aside the sale. The case, therefore, according to his submission, was covered by the principle of law decided by a Bench of this Court in the case of Dhari Jena v. Gauranga Charan Sahu, AIR 1940 Pat 87 and not by what has been said by another Bench in the case of Dr. Parmanand Verma v. Satnarain Prasad, AIR 1952 Pat 99, upon which reliance has been placed in the courts below.
5. In the case of Dhari Jena, AIR 1940 Pat 87 merely the money was deposited. No application of any kind was filed, making any kind of prayer, nor was even there an oral prayer made to the execution Court. In that view of the matter, it was held that mere deposit of money without there being any prayer for setting aside the sale, could not justify its setting aside under Order XXI, Rule 89, of the Code of Civil Procedure. This case was distinguished by Imam, J. (as he then was) in the case of Dr. Parmanand Verma, AIR 1952 Pat 99 as, in that case, there was an application made. In that application there was a prayer for passing the challan and for ordering to accept the amount so that justice may he done. His Lordship pointed out that the words were sufficient to include a prayer for setting aside the sale. Das, J. (as he then was), in his separate note said:
"There are decisions which have even gone to the extent of saving that the filing of a challan with permission to deposit in Court the decree amount and a sum equal to 5 per cent of the purchase money should by itself be treated as an application to set aside the sale."
but, his Lordship added, "It is, however, not necessary, to go to that extent in the present case, as it may be argued that the decision of this Court in AIR 1940 Pat 87 is against that view; in that case the deposit was made by a challan and was not accompanied by any application whatever."
6. In my considered judgment, in the application filed by the judgment-debtor on the 5th April, 1967, when a prayer was made for passing the challan for deposit of the requisite money, by necessary implication, there was a prayer to do justice by setting aside the sale. Neither of their Lordships has said any word in Dr. Parmanand Verma's case, AIR 1952 Pat 99 which militates against the view expressed by me. Of course, it was not necessary to go to that extent in that case, but it has become necessary for me to go to that extent in this case. In my opinion, the Bench decision in Dhari Jena's case, AIR 1940 Pat 87 also does not go against this view. When there is no kind of prayer made before the execution Court and merely the money is deposited then one may say that without there being any prayer before the Court, no kind of prayer can be implied in the act of deposit of the money. But, when there is a prayer before the Court for permission to deposit the money, the said prayer is made obviously for the purpose of asking the Court to set aside the sale. The Court may refuse that prayer, if it finds that the judgment-debtor has come to deposit the money on the expiry of the period of limitation, but, allowing that prayer is for the purpose of setting aside the sale and, in my opinion, in that prayer, by necessary implication, a prayer is involved for setting aside the sale.
7. In the result, this application in revision fails and is dismissed. But, in the circumstance, I shall make no order as to costs.