-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION (1) Writ Petition No.4412 of 2007 Vijaya Zumbar Patil and another ..Petitioner vs. Shri Dattatray Jagannath Dhonde and others ..Respondents Shri Anilkumar Patil for petitioner. Shri P.K.Dhakephalkar for respondents. (2) Writ Petition No. 5793 of 2007 Shri Ramdas Baburao Nikam ..Petitioner vs. Smt.Vijaya Zumbar Patil and others ..Respondents Shri P.K.Dhakephalkar for petitioner. Shri Anilkumar Patil for respondent no.2. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 9th January, 2008 9th January, 2008 9th January, 2008 P.C. P.C. P.C. 1. The first writ petition impugns the order which has been passed by the Executing Court on application Exh.54. The application of the judgment debtor (Exh.54) has been rejected on 27th April, 2007. 2. It is not disputed before me that the said application is preferred under Order 21 Rule 90 of the Code of Civil Procedure and the defendant/judgment debtor has prayed that the -2- sale in favour of auction purchaser who is the petitioner in Writ Petition No.5793 of 2007 is vitiated in the manner more particularly set out in this application. That is the application which has been preferred on 4th December, 2006 to which the decree holder has replied. The same has been dismissed. It is undisputed before me that on 27th April, 2007 when the said application was dismissed this Court was seized of the writ petition by the very same judgment debtor being Writ Petition No.1040 of 2007. That writ petition has been disposed of by order, copy of which has been annexed as Exhibit F to Writ Petition No.4412 of 2007. 3. The said order of dismissal of Exh.54 could not have been passed without noticing the order and direction of this Court. The same being subsequent in point of time both sides do not dispute that the order under challenge in Writ petition no.4412 of 2007 dated 27th April 2007 requires to be quashed and set aside. It is accordingly quashed and set aside. Exh.54 is restored to file of the Executing Court. 4. Writ Petition No.5793 of 2007 is directed against the order dated 12th July, 2007 which is -3- below Exh.84. 5. Exhibit 84 is the application preferred by auction purchaser R.B.Nikam who prays that he having deposited the entire consideration within time stipulated by the executing Court the sale be confirmed and sale certificate be issued in his favour. This application is preferred on 16th June, 2007. 6. This application is rejected by the learned Judge relying upon the order passed by this Court on 2nd May, 2007 in the writ petition referred to above. 7. The grievance of Shri Dhakephalkar, learned Senior Counsel appearing for the auction purchaser is that merely because the judgment debtors/original defendants have been permitted to deposit certain sums in the Executing Court does not mean that sale is automatically set aside. The learned Judge independently of the direction of this Court and the developments subsequent to filing of the application (Exh.84) was required to apply his independent mind as to whether the sale must not be confirmed or any case is made out for the same being vitiated. -4- That was a matter which should have been gone into and merely because the amount having deposited by the judgment debtor and the same being withdrawn by the decree holder does not mean that the sale is set aside. The sale remains and the Court was obliged to consider whether the sale certificate needs to be issued by confirming the sale or not. 8. Shri Patil appearing for the judgment debtor found it difficult to support order dated 12th July, 2007, more so, in the teeth of pendency of Exh.54. In such circumstances, the order dated 12th July, 2007 is quashed and set aside and even Exh.84 is revived and shall be heard afresh by the Executing Court. 9. To avoid any conflicting orders and directions both Exh.54 and Exh.84 shall be heard together. The Court below should hear and dispose of these applications afresh uninfluenced by its observations in the orders under challenge before me which needless to state are quashed and set aside. 10. Petitions disposed of. -5- (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)