No need to deposit poundage.

JUDGEMENT:- The legal representative of the deceased judgment-debtor in O.S. No. 6757 of 1973, 10th Assistant City Civil Court, Madras, is the appellant in this appeal. The property bearing door No. 206 Arcot Road, Vadapalani, Kodambakkam, Madras, belonged to the family of the appellant and respondents 1 and 2 in execution of the decree obtained by them in O.S. No. 6757 of 1973, brought the property to sale in E. P. No. 2336 of 1976 and the 3rd respondent purchased the property in the sale held on 22-11-1978 for a sum of Rs. 56250/-. The 3rd respondent had also deposited, according to the appellant, 25 per cent of the sale consideration on 23-11-1978. The appellant further stated that out of the amount due to the decree-holder mentioned in the sale proclamation, a sum of Rs. 6,500/- in two instalments of Rs. 5,000/- and Rupees 1,500/- had been paid after the execution petition and therefore, the amount due to the decree-holder as on the date of sale was only Rs. 19,500/-. Claiming that he had deposited a sum of Rs. 19,500/- together with a sum of Rupees 2,812.50 P., representing 5% of the sale consideration paid by the court auction-purchaser and a further sum of Rupees 677.50 P. to cover the expenses of sale, totalling in all to Rs. 23,000/-, the appellant filed the application under Order 21, Rule 89, C.P.C. to set aside the court sale held on 22-11-1978. The appellant had also expressed his willingness to deposit some more amount if found due, though he had stated that he had paid into court a sum of Rs. 23,444/-.

2. The decree-holder viz., respondents 1 and 2 herein made an, endorsement that they have no objection for the sale being set aside as the decree amount has been deposited into court. The application was resisted only by the 3rd respondent herein on the ground that the application had neither been filed in time nor the correct amount deposited.

3. The learned 10th Assistant City Civil Judge, Madras, held that the petition under Order 21, Rule 89, C.P.C. having been filed by the appellant on 21-12-1978 was well within time. However, the learned 10th Assistant Judge held that in the absence of any data or document to show that the sum of Rupees 6,500/- had been paid to respondents 1 and 2, this amount could not be deducted front out of the amount to be deposited. In addition, it was also held that the appellant had not paid the poundage of Rs. 1,725/-. In this view, the court below held that the appellant had not paid the entire amount and therefore, the sale cannot be set aside. Consequently, the petition was dismissed. It is the correctness of this order that is challenged in this appeal.

4. It is necessary at this stage to deal with an objection raised by the learned counsel for the 3rd respondent to the effect that the petition is barred by limitation. It is not disputed that the sale of the property was held on 22-12-1978. The objection that is raised by the 3rd respondent is that the petition had been filed on 6-1-1979 and therefore, the application is barred. The other objection that is raised in this connection is that the deposit of the amount was made on 27-2-1979 long after the filing of the application and consequently, there was no deposit within time as contemplated in an application under Order 21, Rule 80, C.P.C. A perusal of the application filed by the appellant under Order 21, Rule 89, shows that the petition had been signed on 21-12-1978 and it also bears the court's seal for haying been presented into court on 21-12-1978. Therefore, there is no substance in the objection of the 3rd respondent that the petition was filed only on 6-1-1979 and consequently, it is barred. With reference to the objection that there was a delayed deposit of the amount into court, it is found from the records that a sum of Rs. 23,000/- had been deposited into the Reserve Bank of India on 22nd December, 1978 and that challan had also been produced before the City Civil Court, Madras, but that the amounts so paid h