The main legal point established in the judgment is the importance of considering timely payments and compliance with statutory requirements when applying Order 21 Rule 89 of the Code of Civil Procedure.

This Civil Revision Petition is directed against the order dated 18 November, 2014, in E.A.No.149 of 2012 in E.P.No.83 of 2008, whereby and whereunder, the learned Subordinate Judge, Srivilliputhur, was pleased to dismiss the application filed by the petitioner to set aside the sale.

SUMMARY OF FACTS:

2. The first respondent filed a suit in O.S.No.145 of 2005, on the file of learned Subordinate Judge, Srivilliputhur. It was a suit for recovery of money. The Trial Court passed a decree, directing the petitioner to pay a sum of Rs.5,37,268/-.

3. The first respondent filed Execution Petition in E.P.No.83 of 2008 to execute the decree. The Executing Court passed an order for the sale of mortgaged property to realise the decree amount. The bid submitted by the second respondent for a sum of Rs. 5,02,000/-was accepted by the Executing Court.

4. The petitioner, in the meantime, paid the entire decree amount to the decree holder and filed an application under Order 21 Rule 89 of Code of Civil Procedure. The learned Executing Judge dismissed the said application primarily on the ground that the application was made beyond the period of 60 days and it was not accompanied by the mandatory deposit. The petitioner challenges the legality and correctness of the order in E.A.No.149 of 2012.

RIVAL SUBMISSIONS:

5. The learned counsel for the petitioner contended that the second respondent paid the balance amount of sale consideration on 25 November, 2011. The petitioner mobilized money and paid the entire decree amount along with the amount payable to the first respondent on 21 December, 2011. According to the learned counsel, the Executing Court, without recognizing the payment made to the decree holder, dismissed the application. The learned counsel contended that the application made on 23 January, 2012, should have been considered, in the light of the payment made to the decree holder on 21 December, 2011.

6. The learned counsel for the second respondent/auction purchaser justified the impugned order. According to the learned counsel, the petitioner filed the application on 23 January, 2012, without complying with the statutory requirements of Order 21 Rule 89 of Code of Civil Procedure. The learned counsel contended that the application itself was delayed by five days and as such, the learned Subordinate Judge was justified in dismissing the interlocutory application.

THE ISSUE:

7. The only question that arises for consideration is whether the learned Executing Judge was correct in dismissing the application filed under Order 21 Rule 89 of Code of Civil Procedure, on the ground that it was made beyond the period of 60 days, notwithstanding the fact that the entire decree amount and 5% of the boundage amount payable to the auction purchaser was paid to the decree holder within the statutory period.

DISCUSSION:

8. The first respondent filed E.P.No.83 of 2008 to execute the decree in O.S.No.145 of 2005. The Executing Court conducted auction on 18 November, 2011. The second respondent was the successful bidder. The second respondent deposited 1/4 of the sale amount on 18 November, 2011. The balance amount was deposited on 25 November, 2011. The petitioner, in the meantime, paid a sum of Rs.7,00,000/-to the decree holder and obtained a receipt on 21 December, 2011. Thereafter, the petitioner filed an application in E.A.No.149 of 2012 under Order 21 Rule 89, on 23 January, 2012.

9. The learned Executing Judge considered the application under Order 21 Rule 89, taking into account the date of sale and the date of application filed by the petitioner to set aside the sale. While considering the question of delay, the learned Executing Court omitted to take into account the background facts relating to the payment made by the petitioner to the decree holder on 21 December, 2011. Even though the decree granted to the first respondent was for a sum of Rs.5,37,268/-, the fact remains that the property was sold only for a sum of Rs.5,02,000/-. The