Pachiayee vs Vallimuthu Velan

Srinivasa Aiyangar, J.—I very much regret I cannot interfere with the order of the lower Court in Revision. The petitioner who was

judgment-debtor paid the required amounts according to the rules under the provisions of Order 21, Rule 89, apparently with a view to enable her

to apply for setting aside the sale, under the terms of that section. But it is now clear that there was no application made by her to the Court either

in writing or by parol. A few days after this the Court confirmed the same and more than 90 days thereafter the petitioner applied for a review of

the order of confirmation. The lower Court has held that the review petition was barred by limitation and dismissed it. Assuming that the lower

Court erred in its view of the law with regard to limitation to be applied to the review petition, I do not see what jurisdiction I have to interfere.

However, that may be, in view of the fact that no application was made by the petitioner to set aside the sale, I see no substance even in the

application for the review and no use even if I should direct the lower Court to consider the application of the petitioner for review of the order.

Three learned Judges of this Court have held that an application either in writing or in oral for Betting aside the sale is necessary before the Court

can be called upon to act and set aside the sale under the provision of Order 21, Rule 89. In the case of Papooru Venkatanarasimha v. Javenti

Lakshminarasimham (1916) 3 L.W. 174 Sadasiva Iyer and Moore, JJ., held that an application oral or written made within 30 days was necessary

for the purpose of Section 310(A) of the CPC corresponding to Order 21, E. 89. Mr. Justice Krishnan has also taken a similar view in the case of

Venkatasubba Rao v. Narayana Rao AIR 1922 Mad. 83 The Bombay case in Mathuji v. Kondaji (1905) 7 Bom. L.R. 263 has been expressly

dissented from and refused to be followed by this Court. It is no doubt a hard case but after all the provisions of the cure Procedure Code are

meant to be observed and in view of the decision of this Court, I feel I cannot do anything to help the petitioner. The C.R.P. is accordingly

dismissed and I do not see why costs should not follow the event and I accordingly award costs against the petitioner to the respondent.