Hon’ble Anil Kumar, J.—Heard Sri S.M.K. Chaudhary, Senior Advocate assisted by Sri Adnan Ahmad, learned counsel appearing on behalf of revisionist, Sri Shashi K. Sinha, learned counsel appearing on behalf of auction purchaser and perused the record.

2. Sri Rajendra Kumar Sharma is the owner of the property situated at 1/107, Vijay Khand, Gomti Nagar, Lucknow (hereinafter referred as premisses in question) and Sri Amit Kumar/revisionist is tenant.

3. In the year 1999, landlord/Rajendra Kumar Sharma filed a suit registered as S.C.C. Suit No. 51 of 1999, for ejectment, rent and damages against the revisionist. During the pendency of the same, the premises was vacated by the revisionist and the possession given to landlord.

4. Thereafter by an order dated 29.1.2002, the suit was decreed for rent and dues for as Rs. 39000/- arrears and Rs. 13526 as electricity Bill /- against Sri Amit Kumar/revisionist. As the decree passed in the SCC suit has not been satisfied, so the landlord/Rajendra Kumar Sharma/decree-holder filed an execution Case No. 01/2002 (Rajendra Kumar Sharma v. Amit Kumar). In spite of the service of the notice in the execution case, the revisionist/Amit Kumar has not put his appearance, as such on 19.10.2005, property of Sri Amit Kumar at house No. 5/162 Vinay Khand, Gomti Nagar, Lucknow having area of 3,152 sq. ft. (hereinafter referred to as the property) has been attached and on 21.10.2005 notice of attachment was affixed on the property.

5. On 9.5.2006, the judgment-debtor moved an application under Section 151 CPC thereby tendering a sum of Rs. 12526/- by bank draft and cheque of Rs. 40,000/- in order to satisfy the decree, the same was considered/adjudicated by executing Court on 12.5.2006 (forenoon) an order has been passed by which the said amount has been handed over to the counsel for decree-holder, with a direction to file reply if the same is encashed within seven days and if not, objection be filed, fixed the matter for disposal on 19.5.2006, however, on the same day, in the afternoon (at 2.30 p.m.), the auction of the property took place and Sri Prem Kumr Garg/O.P. No. 1 has purchased the same for a sum of Rs. 1,60,000/-, deposited Rs. 40,000/- i.e. 1/4th of the auction money plus Rs. 3200/- as poundage money with the authority concerned conducting the auction.

6. Aggrieved by the same, an application under Order 21 Rule 89 CPC has been moved on behalf of the judgment-debtor/revisionist for setting aside the sale, and executing Court by order dated 24.5.2006 set aside the sale. The said order has been challenged by the auction purchaser by filing a Revision No. 131 of 2006 (Prem Kumar Garg v. Rajendra Kumar Sharma and another), allowed by order dated 28.4.2008, relevant portion quoted as under :

“As it appears from the facts, before the sale, an application dated 27.4.2006 was filed alongwith a Bank Draft of Rs. 12526/- and four cheques of the dates subsequent to the date of the sale. The Court did not recall warrant for subsequent to the date of sale. Tehrefore, the sale was held as scheduled on 12.5.2006 in presence of the decree-holder.

After the sale, the judgment-debtor moved an application under Order 21 Rule 89 of the Code of Civil Procedure for cancellation of the sale. In the said applcation also he referred the same faacts regarding payment of the decretal amount as were incorporated in the applciation datd 27.4.2006. The execution Court on that very date without affording any opportunity of hearing to the applicant in a most causal and arbitrary manner wihtout looking the Order 21 Rule 89 as well cancelled the sale and struck off the execution.

Order 21 Rule 89 of the Code of Civil Procedure in case of cancellation of sale certain amount is required to be paid to the purchaser. Since the entire decretal amount was not paid prior to the sale of the property and an application was moved subsequent to the sale under Order 21, Rule 89 the passing of the order without compliance of the req