Jyotish Chandra Sikdar And Ors. v. Surbndra Nath Das And Anr. Opposite Party

The Judgment of the Court was as follows:—

This Rule is directed against the order of the District Judge of Jessore, dated the 26th March, 1938, whereby the learned Judge has reversed the decision of the second Court of the Munsif at Narail in a proceeding for setting aside the sale under Or. 21, r. 89, C.P.C and has dismissed the judgment-debtors-Petitioners' application for setting aside the sale under that Rule.

It is not disputed in this case that the money required to be deposited under r. 89 was deposited by the Petitioners in Court within the time prescribed by law. The only objection to an order being made in favour of the judgment-debtors Petitioners is that there was no formal application by them for setting aside the sale. Or. 21, r. 89, C.P.C, evidently contemplates an application for setting aside a sale. The Munsif was of opinion that the challans by which the judgment-debtors deposited the amount required to be deposited under r. 89 and which also set out the purpose of the deposit might be regarded as a sufficient application. In this view, the Munsif set aside the sale. On appeal the learned Judge has not specifically disagreed with the view of the matter, though he was of opinion that the Rule required an application either in writing or oral. In view of the facts of the present case I agree with the Munsif that the challans which set out the purpose of the deposit may be regarded for the purpose of the present case, as an application for setting aside the sale.

The result therefore is that this Rule is made absolute. The order of the District Judge is set aside and that of the Munsif is restored.

Parties will bear their own costs in the proceeding under Or. 21, r. 89, C.P.C, throughout.

Let the counter-affidavit filed to-day in Court be kept on the record.

C.C