The applicant claiming benefit of Order 21 Rule 89 can avoid the sale if he deposits the amount within the time required to be deposited under Order 21 Rule 89 of Code of Civil Procedure.

( 1 ) THIS writ petition is directed against the order dated 13-2-1986 passed by respondent No. 1 allowing the revision and rejecting the application of respondent No. 2 to set aside the auction sale.

( 2 ) THE factual matrix of the case is that respondent No. 2 filed Suit No. 80 of 1975 for recovery of money against the petitioners. The suit was finally decreed in 1979. The decree-holder filed application for execution of the decree in the year 1979. The property of the judgment-debtors was attached and sold in auction on 4-9-1981. The petitioners filed objection under Order 21, Rule 90 of the Code of Civil Procedure. The objection was dismissed in default and the auction sale was confirmed on 18-2-1983 and the Court directed the petitioners to hand over possession of the property which was sold in auction. The petitioners thereupon filed application to set aside the auction sale held on 4-9-1981 with the allegation that they had deposited the amount after the auction sale, which covered the amount of the purchase money. The trial Court, taking the view that the amount was deposited after the auction in pursuance of the order of the Court, set aside the auction sale on 25-1-1985. Respondent No. 2 filed revision against this order. Respondent No. 1, on the finding that as the petitioners had not deposited the amount in accordance with Order 21, Rule 89 of Code of Civil Procedure, set aside the order of the trial Court vide impugned order dated 13-2-1986.

( 3 ) THE core question is whether the petitioners are entitled to the benefit of any deposit under Order 21, Rule 89 of Code of Civil Procedure which reads as under :- 89. Application to set aside sale on deposit.- (1) Where immovable property has been sold in execution of a decree, (any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, (may apply to have the sale set aside on his depositing in Court,- (A) for payment to the purchaser, a sum equal to five per cent of the purchase money, and (B) for payment to the decree-holder, the amount specified in the proclamation of sale as that was for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. (2) Where a person applied under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. "

( 4 ) THE first condition is that the required amount should have been deposited within 30 days from the date of sale as provided under Article 127 of the Limitation Act, 1963. In Raghubir v. Gulab Shanker Upadhya, 1981 All. LJ 1124, the Court held that the applicant claiming benefit of Order 21 Rule 89 can avoid the sale if he deposits the amount within the time required to be deposited under Order 21 Rule 89 of Code of Civil Procedure. In Amritalal Narsilal v. Sadashiv, AIR 1944 Bombay 233 (2), the Court did not accept the contention that the delay in deposit can be condoned and even the plea of waiver cannot be upheld. Section 5 of the Limitation Act, 1963 specifically provides that this provision is not applicable to any application entertainable under Order 21 of the Code of Civil Procedure. On facts the Court has found that the petitioners had deposited Rs. 2,000. 00 on 22-9-1981, Rs. 350. 00 on 31-10-1981 and Rs. 5,811. 00 on 8-12-1988. As the entire amount was not deposited within 30 days from the date the property of this provision.

( 5 ) THE second condition is that the deposit under Order 21 Rule 89 of Code of Civil Procedure should be unconditional. The petitioner had filed objection under Order 21 Rule 90 of Code of Civil Pr