ORDER
1. The petitioners have challenged the order dated 9-9-1994, passed by respondent No. 3, whereby the auction sale dated 23-5-1985 has been set aside.
2. The facts in brief are that Ramadhar, respondent No. 2 obtained a decree. He filed execution cast- No. 10 of 1983 against the judgment-debtor, respondent No. 1. After filing the execution application respondent No. 1 had deposited the decretal amount in seven instalments and the last date of its payment was 26-6-1985. Before the last date of payment, the property of respondent No. 1 was auctioned on 23-5-1985. The judgment-debtor-respondent No. 1 filed application (57C) before the Executing Court stating that he had deposited the entire decretal and penalty amount, as provided under Order 21, Rule 89, C.P.C. the auction sale should be set aside. He further prayed that the tender forms along with application already filed by him be treated as application for setting aside the sale as required under Order 21, Rule 89, C.P.C. The petitioners filed objection to the said application. The Civil Judge rejected the application on 21-4-1987. Respondent No. 1 filed Misc. Civil Appeal No. 150 of 1987 which has been allowed by respondent No. 3, holding that the judgment-debtor-respondent No. 1 complied with the conditions prescribed under Order 21, Rule 89, C.P.C. and the auction sale dated 23-5-1985 was liable to be set aside. His order has been challenged in this writ petition.
3. Learned counsel for the petitioners urged that the judgment-debtor-respondent No. 1 has to comply with two conditions before the auction sale is to be set aside. Firstly, he should have deposited the amount as provided under Order 21, Rule 89, C.P.C. and secondly, he should have filed an application to set aside the sale within 30 days. Respondent No. 1 failed to comply with both these conditions and respondent No. 3 acted illegally in setting aside the sale, under Order 21, Rule 89, C.P.C.
4. The learned counsel for the petitioner urged that the filing of the application is the condition precedent under Order 21, Rule 89, C.P.C. for setting aside the auction sale. He placed reliance upon Ram Autar V. Sheo Piarey Lal Pandey, AIR 1925 Oudh 411, wherein the Court held that an application cither written or oral is necessary for the setting aside of a sale under Order 21, Rule 89, C.P.C. The same view was expressed in Pachiayee v. Vallimuthu Velan, AIR 1925 Madras 639 and Dhari Jena v. Gauranya-charan Sahu, AIR 1940 Patna 87. In these cases there were no applications written or oral. The intention under Order 21, Rule 89 is clear that the judgment-debtor must express to the Court that he seeks setting aside of the auction sale.
5. In Mahmood Khan v. Shaikh Mazid Husain, AIR 1939 All 241, a Division Bench of this Court took the view that presentation of a form of tender for deposit of sale price and five per cent as required by Order 21, Rule 89 to a Court for signature, must be deemed to be an application, not only for the deposit of the purchase money, but also to have the sale set aside and an oral or written application for setting aside the sale is not strictly necessary. Although the form of tender does not use the actual words that the sale should be set aside but it is clearly the intention of a person presenting the form to a Court for signature that the deposit is being made for that purposse. The decision of Madras High Court in the case of Pachiyee (supra) was considered. The same view was followed in Kishun Lal v. Babuain Hardevi Kaur, AIR 1946 Oudh 45 and Mst. Hiraniar v. Sm. Ram Paiari, AIR 1950 All 367. The Bombay High Court in the case of Marutishidalappa v. Shivappa Mallappa Chaugula, AIR 1967 Bombay 39, followed the decision of Allahabad High Court, referred to above and distinguished the cases of Pachiayee v. Vallimuthu Velan, AIR 1925 Madras 639 and Amrit Lal Naral Lal v. Sadashiv, AIR 1944 Bombay 233 (2). It was held that filing of tender contains an implicit prayer for setting aside the sale and absence of formal application does not amount to a non-compliance of the provisions of Order 21 Rule 89, C.P.C.
6. In the present case the auction had taken place on 23-5-1985. Respondent No. 1 had submitted the last tender form on 30-5-1985. In view of the decisions referred to above, it is clear that the submission of the tender form impliedly contained the prayer forfeiting aside the sale. Respondent No. 1, to avoid any complication, moved application on 9-5-1986 (57C) for selling aside the sale and further prayed that the tender form submitted along with the application may be treated as an application for setting aside the sale as required under Order 21, Rule 89, C.P.C. The respondent No. 1 had submitted the render form along with an application and he could make necessary amendment in the application to clerify the position. The intention of respondent No. 1 was clear when he submitted the application to deposit the money along with tender form with a view to get auction sale set aside and the prayer for selling aside the sale was implicit therein.
7. The second submission of learned counsel for the petitioners is the entire amount as required under Order 21, Rule 89, C.P.C. was not deposited within 30 days. The auction had taken place on 23-5-1985. Respondent No. 1 had deposited certain amount towards decree prior to the date of auction sale. He deposited Rs. 12,233.85 p. on 26-5-1985 i.e., after the delay of four days. He had, in fact, submitted the tender form and an application on 30-5-1985 in the Court. The respondent No. 1 could not deposit the amount directly in Treasury unless the signature of the Court is obtained on the tender form. The date of deposit will relate back to the date of filing of the tender. In K. P. Jain v. Om Prakash, 1986 All LJ 1108, it was held that when payment has to be made in Court, it is in view of the prevailing practice, is made by filing a tender and delivering the money to the treasury or bank in accordance with the order passed by the Court on the tender. The tender, therefore, is like a negotiable instrument, it "presents and produces cash and is treated as such by Courts.
8. As the respondent No, 1 had presented the tender form within 30 days of the date of auction sale and he deposited the amount after signature of the tender by the Court, such deposit shall be treated as made within 30 days.
9. Learned counsel for the petitioners contended that the amount should be deposited within reasonable time from the date of submission of the tender. The petitioners have not shown the date of putting the signature by the Court on tender form. The deposit has to be made within a reasonable time from the date the Court passes the tender. What is reasonable time will depend upon the facts of each case. There is nothing to show that respondent No. 1 acted negligently even after passing of the tender.
10. In the result, the writ petition fails and is accordingly dismissed.
11. Petition dismissed.