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Mahboob Khan vs Shaikh Majid Husain And Anr.

High Court Of Judicature at Allahabad|22 December, 1938


1. This is a civil revision by Mahboob Khan, a judgment-debtor, against an order in appeal of the Civil Judge of Jaunpur. The facts are that the Municipal Board of Jaunpur had a decree against Mahboob Khan and put up some property of his for sale on 15th July 1936. Within a month of that sale on 11th August 1936 Mahboob Khan came to the Court with a form of tender for deposit of the sale price and 5 per cent, as required by Order 21, Rule 89 for the purpose of having the sale set aside. The Munsif signed the tender and Mahboob Khan took it to the Treasury and deposited the money. Some days later, on 21st August 1936, after a period of thirty days had expired, he made an application in writing setting out these facts. The matter eventually came before the Munsif before the sale was confirmed and the Munsif went into the question whether an oral application was made to him for setting aside the sale in addition to the tender and held that it had been made. He therefore accepted the application of the judgment-debtor and set aside the sale. It will be noted that the sale had not been confirmed. The auction-purchaser appealed to the Civil Judge and the Civil Judge held:
The oral evidence on the record does not fully convince me that an oral application such as that alleged by the judgment-debtor was ever made. The Court had therefore no right to set aside the sale under Order 21, Rule 89, Civil P.C.
2. A learned Judge of this Court has differed from this view and has referred this case to a Bench. Various rulings have been produced. One of these is Ramraj Singh v. Rabi Prasad (1921) 63 I.C. 140. In this ruling Sir P.C. Banerji held:
In the first place the application to deposit the money and the penalty of 5 per cent, on the purchase money must be deemed to be an application not only for the deposit of the purchase money but also to have the sale set aside.
3. Under Order 21, Rule 89 two things are required. Firstly that the judgment-debtor should apply to have the sale set aside, and secondly that he should deposit in Court the sum of money required by that Rule. According to learned Counsel for the opposite party there should be three things, namely an application to have the sale set aside, also a tender and also a deposit. We do not think that the Rule requires more than two things and the interpretation by Sir P.C. Banerji is one with which we agree. No doubt a more strict view has been taken in certain rulings that there should be an oral application and this has been laid down by Chamier J. in Sarvi Begam v. Haidar Shah (1912) 9 A.L.J. 12 and in Murugappa Asari v. Shanmuga Mudalia (1925) 12 A.I.R. Mad. 909 and Pachiayal v. Vallimuthu Velan (1925) 12 A.I.R. Mad. 639. We consider however that the view in Ramraj Singh v. Rabi Prasad (1921) 63 I.C. 140 is one which we should follow and accordingly we follow it. 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 this form to a Court for signature that the deposit is being made for that purpose. For these reasons we allow this civil revision and we set aside the order of the lower Appellate Court and we restore the order of the Court of first instance with costs throughout.
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Mahboob Khan vs Shaikh Majid Husain And Anr.


High Court Of Judicature at Allahabad

22 December, 1938