Deposit of amount prior to confirmation of sale sufficient compliance.

K.M. Natarajan, J.

1. This revision is directed against the order of dismissal passed in an application, EA. No. 313 of 1983 in E.P. No. 101 of 1977 in O.S. No. 537 of 1972 filed under Order 47, Rule 1 and Section 151, C.P.C.

2. The facts which are necessary for the disposal of this revision can be briefly stated as follows:

The first respondent obtained a preliminary decree for sale of the mortgaged properties on 17.10.1974 and a final decree on 9.7.1976. In pursuance of the same, E.P. No. 101 of 1977 was filed before the Sub Judge, Madurai. The first item of the properties was sold to the second respondent A.R. Nachiappan on 13.12.1982 for Rs. 35,000. In pursuance of the said sale, the second respondent deposited 1/4th of the sale amount, namely, Rs. 8,775 and the matter was posted for confirmation of sale on 12.2.1983. The balance of sale amount, was also deposited on 24.12.1982. A sum of Rs. 76,850.07 was deposited by the counsel for the fourth defendant on 31.1.1983 after filing lodgment schedule and obtaining chalan from court. 12.2.1983 and 13.2.1983 were holidays. Hence, it was called on 14.2.1983. On that day, on behalf of the fourth defendant, a petition was filed under Section 151, C.P.C. stating that the amount of Rs. 76,850.07 was already deposited under chalan No. 2144 on 31.1.1983 towards the decree amount, costs, poundage, sale commission, interest, etc. in full satisfaction of the entire decree and hence the entire decree was fully satisfied, that the sale has to be set aside and that the execution petition has to be closed. The court below rejected the said application without even numbering the same and confirmed the sale holding that the balance of the purchase money and sale certificate charges were deposited on 24.12.1982 by the auction purchaser, that though the counsel for the fourth defendant deposited the amount of Rs. 76,850.07, no petition to set aside the sale was filed within the time and that the deposit was made after 30 days after the date of sale. Hence, the sale was confirmed and the execution petition was dismissed. Aggrieved by the same, the revision-petitioners herein filed E.A. No. 313 of 1983 or review of the order dated 14.2:1983 contending that the executing court was in error in holding that the amount was not deposited within 30 days from the date of sale and that the said deposit was after the period of limitation while there is no limitation for deposit of the amount. It was submitted that only the petition to set aside the sale under Order 21, Rule 89, C.P.C. has to be filed within 60 days and within the time the amount has to be deposited as provided under Article 127 of the Limitation Act. Further, no separate petition to set aside sale is necessary, since such prayer is implied in the application for deposit of the amount which amount is payable to the decree-holder. The application has been filed to set aside the sale on 14.2.1983 but it has been rejected. It was submitted that the court has failed to note the errors and mistakes on the face of the records and if it considered it would have set aside the sale and as such they prayed for review of the order.

3. The said application was resisted by the respondents. In the objections, it was stated that the payment, made after 30 days but before 60 days, is barred by limitation. Further, they are not entitled to ask for setting aside the sale without a petition even though the deposit was made. In any event, the present application under Order 47 C.P.C. is not maintainable.

4. The court below upheld the objections of the respondents and dismissed the application. Hence this revision.

5. The learned Counsel for the revision petitioners, Mr. N.S. Nandakumar mainly submitted that the properties were brought to sale in pursuance of the decree obtained on a mortgage and the deposit made on 31.1.1983 before the confirmation of sale is a proper payment in full satisfaction of the decree amount and the sale has to be set aside on that gro