1 wp264.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 264 OF 2011 WITH CIVIL APPLICATION NO. 3031 OF 2011 Mahesh S/o Pannalal Gandhi ..PETITIONER -VERSUS- Sukhdeo S/o Baburao Dukre and others ..RESPONDENTS ..... Mr.R.L. Kute holding for Mr. V.R. Dhorde, advocate for petitioner. Mr. D.R. Adhav, advocate for respondent no.1. Mr. V.S. Badakh, advocate for respondent nos.2 & 3. Mr. V.B. Anjanvatikar holding for Mr. V.D. Hon, advocate for respondent no.4. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 14th March, 2011. PER COURT : 1. Civil Application moved by the petitioner-auction purchaser to add certain legal challenges. Petition is yet to be admitted. Hence, though respective counsel are opposing the prayer, the amendment allowed. Necessary amendment be carried out forthwith. 2. Heard finally with consent. 3. Advocate Mr. R.L. Kute holding for Mr. V. R. Dhorde for petitioner has contended that the petitioner is successful auction purchaser and sale in his favour has been set aside by the impugned order without considering the mandatory provisions of 2 wp264.11 law. Respondent nos.2 and 3-judgment debtors filed application at Exhibit-36 for setting aside the sale invoking the provisions of Order 21 Rule 90 of the Civil Procedure Code and during its pendency filed another application at Exhibit-41 pointing out that they have deposited the decreetal amount and hence sale can not be confirmed. The trial Court has accepted the deposit, and therefore, has set aside the same. According to the learned Counsel for the petitioner in the process, the Order 21 Rule 89(2) are totally lost sight of. Thus, there is failure to exercise jurisdiction. 4. Advocate Mr. Adhav for respondent no.1 has contended that the petitioner is not a agriculturist, and therefore, he has no right to purchase the suit property. He further contends that as the amount of decree along with 5% extra amount as required by provisions of law are deposited, the requirement of Order 21 Rule 89(2) of Civil Procedure Code are satisfied and hence the sale has been rightly set aside. 5. Advocate Mr. V.S. Badakh for the respondent nos. 2 and 3 (guarantors) adopts the arguments of Advocate Mr. Adhav. 6. Advocate Mr. V.B. Anjanvatikar holding for Mr. Hon for respondent no.4-Bank states that the respondent no.4 bank is decree holder and is interested in expeditious recovery of its outstanding loan. 7. The provisions of Order 21 Rule 89(2) of Civil Procedure Code mandates that the person who has applied under Rule 90 to set aside the sale of his immovable property is not entitled to make or prosecute an application under Order 21 Rule 89(1) of Civil 3 wp264.11 Procedure Code unless he withdraws his application to set aside the sale. Here that application at Exhibit-36 is not shown to have withdrawn. Not only this the trial Court has also not considered the embargo prescribed in Order 21 Rule 89(2) in this respect. The defence of judgment-debtor (present respondent no.1) that the petitioner not being agriculturist could not have purchase the suit land is also not decided either way. In this situation, it is apparent that there is failure to exercise jurisdiction. 8. Advocate Mr. Adhav has attempted to persuade this Court to accept the payment by judgment debtor and also to hold that the petitioner who has deposited the purchase money is not the agriculturist. This Court can not record such finding for the first time. 9. In this situation the impugned order passed below Exhibit-41 in Special Darkast no. 185 of 2003 on 03.01.2011 is hereby quashed and set aside. The application at Exhibit-41 is restored back to the file of trial Court for its consideration in accordance with law. The trial Court shall give parties necessary opportunity and thereafter shall redecide the same as early as possible and in any case within a period of four weeks from the date of communication of this order to it. Rule is made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp264.11