JUDGMENT :

(Prayer : This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(j) of the C.P.C, against the fair and decreetal order dated 07.06.2013 in E.A.No.63 of 2013 in E.P.No.5 of 2010 in O.S.No.32 of 2007 on the file of the District Court, Nilgris at Udhagamandalam.)

1. The short points for consideration in the above Appeal are as follows :-

i) Whether the auction sale conducted under the provisions of Order 21 Rule 54 and 66 of the Code of Civil Procedures pursuant to a mortgage decree could be set aside by invoking the provisions of Order 21 Rule 89 read with Order 21 Rule 92 or Order 34 Rule 5(2) of the Code of Civil Procedures.

ii) Whether the judgement debtor can invoke the remedy available to him under the provisions of Order 34 Rule 5 of the Code of Civil Procedure at the stage of appeal especially when the application before the Court is one filed under the provisions of Order 21 Rule 54 and 66 of the CPC.

2. The appellant is the auction purchaser before the Executing Court.

3. Since the questions involved are purely legal, it would be necessary to only touch upon the dates and events which have culminated in the filing of the above appeal.

Dates and Events:-

Submissions:-

3. Mr.B.Ravi, learned counsel appearing on behalf of the appellant would base his argument on the following:-

a) The application being one under Order 21 Rule 89 of the Code of Civil Procedure, the deposit ought to have been made within a period of 60 days from the date of the sale. However, in the instant case, the amount was deposited only on 27.03.2013.

b) Under Order 21 of Rule 89, CPC the deposit was not only a prerequisite but also mandatory.

c) The 1st respondent/5th judgment debtor and the other judgement debtors have sold the property to a third party and therefore they had no subsisting interest in the property.

d) The provisions of Order 34 Rule 5 of the Code of Civil Procedure cannot be invoked without there being any application before the Court.

4. He would also rely upon the following judgements:-

i) AIR 1963 Madras 156- T.S.Sailppan Vs. Subbiah Pillai and Others in support of his contention that under the provisions of Order 21 Rule 89 CPC only a person having an interest in the property can seek to have the sale set aside.

ii) AIR 1968 SC 86- Hukumchand Vs. Bansilal and Others in support of his contention that the Court does not have the power to extend the time for making deposit beyond the period prescribed under law.

iii) A 5 bench judgement of the Hon’ble Supreme Court reported in (2001) 7 SCC 71 - Dadi Jagannadham Vs. Jammulu Ramulu and another in supp