JUDGMENT

P. S. KAILASAM, J.:— This appeal is by the auction-purchaser on a certificate of fitness granted by the High Court of Madhya Pradesh against its order setting aside the decisions of Single Judge and the District Judge and directing the District Judge to deal with the application under Order 21. Rule 89, Civil Procedure Code, filed by the judgment-debtors Bhagwandas and Rameshwar Prasad on 7th February, 1966.

2. The decree-holder, Smt. Bittibai, the 17th respondent herein, in execution of a money-decree in her favour against respondents 1 to 16 and 18 herein sold a house belonging to the judgment-debtors on 8th January, 1966. It was purchased in the court-auction by the appellant herein. On 17th January 1966, respondent 18 Babulal, one of the judgment-debtors made an application in the court of District Judge, Sagar, under Order 21, Rule 90, Civil Procedure Code, for setting aside the sale. On 7th February, 1966 an application was filed under Order 21, Rule 89, by Babulal, the 18th respondent, on behalf of himself and respondents 1, 4 and 7 and the decretal amount of Rs. 27,267/90p. and Rs. 2,300/- as compensation, totaling in all Rs. 29,567/90p. was deposited. The appellant, auction-purchaser, resisted the application filed by the judgment-debtors, under Order 21, Rule 89, on the ground that as an application under Order 21, Rule 90, was already pending the application under Rule 89 is not maintainable.

3. The trial court by an order dated 9th August, 1966 held that since the application of the judgment-debtors under Order 21, Rule 90, was pending the application under Order 21, Rule 89, was liable to be dismissed as not competent. It further held that the application filed by the judgment-debtor, Babulal, dated 7th February, 1966 was not a proper application under Order 21, Rule 89. The judgment-debtors filed an appeal to the High Court of Madhya Pradesh and the learned Single Judge who heard the appeal held that the application dated 17th January, 1966 under Order 21, Rule 90, was a bar to the maintenance of the application dated 7th February, 1966 under Order 21, Rule 89, and dismissed the appeal of the judgment-debtors on 24th February, 1967. The judgment-debtors filed a Letters Patent Appeal to a Division Bench of the Madhya Pradesh High Court. The Division Bench allowed the appeal of the judgment-debtors and set aside the judgment of the courts below on 2nd May, 1968. The decree-holder filed an application for granting a certificate of fitness which the High Court granted by its order dated 18th September, 1968. In pursuance of the certificate this appeal has been preferred by the appellant.

4. The main contention put forward by Mr. Sanghi, the learned counsel for the appellant, is that the application dated 17th January, 1966 filed by Babulal was on behalf of the firm and therefore the application alleged to be under Order 21, Rule 89, on behalf of the firm is not maintainable as the earlier application under Order 21, Rule 90, was pending. The learned counsel further contended that the application dated 7th February, 1966, was for a mere deposit of money and not an application under Order 21, Rule 89, for setting aside the sale. In any event, it was submitted that the courts below ought to have found that the application under Order 21, Rule 89, was barred by time.

5. In order to appreciate the contentions of the learned counsel, it is necessary to set out the relevant applications. The application filed by Babulal on 17th January, 1966, is marked as item No. 3 on p. 25 of the printed paper book. The cause-title mentions the applicant as Firm Durga Prasad Ganesh Dass, through Partner Babulal, Bittibai, the Decree-holder, and Himmatbhai, the Auction-purchaser, are impleaded as respondents. The applicant Babulal has filed the application as partner. The learned Single Judge construed this application as having been made by Babulal for himself alone as one of the judgment debtors. The plea that the application under