1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2646 OF 2009 Balasaheb Vishnu Jagtap .. Petitioner Versus Dilip Urban Co-operative Bank Ltd & Ors. .. Respondents Mr.A.M.Kulkarni for the petitioner. Mr.B.D.Joshi for respondent no.2. CORAM : A.S.OKA, J. DATE : 23rd July 2009. P.C.: . Heard learned advocate for the petitioner and learned advocate for the 2nd respondent. The 1st respondent bank obtained a money decree against the petitioner. In execution, the property of the petitioner was put to sale. On 10th April 2008 an order was passed making the sale in favour of the 2nd respondent absolute in accordance with Rule 92 of the Code of Civil Procedure, 1908. In the said order it is noted that the petitioner was served with notice under Rule 66 of Order XXI of the said Code on 13th December 2004. Thereafter, a proclamation was published. The bid of the 2nd respondent was accepted on 22nd February 2006. The 2 order notes that on the very day the 2nd respondent deposited 1/4th of the purchase price and on 01st March 2008, the balance amount was deposited. After observing all this, by the order dated 10th April 2008 the sale was made absolute. An appeal was preferred by the petitioner before the District Court for challenging the said order passed on 10th April 2008. By the impugned order, the application for stay was rejected by the learned District Judge. 2. The learned counsel appearing for the petitioner submitted that the application for stay has been rejected on erroneous ground that the appeal was not maintainable. His submission is that till February 2008, a sum of Rs.47,500/- was recovered from the other judgment debtor and on 27th June 2008 the petitioner had deposited a sum of Rs.98,000/-. He submitted that without considering this aspect, pending a substantive appeal, the District Court has declined to grant stay. He submitted that as a result of the said order, the remedy of the appeal available to the petitioner has been completely defeated. He 3 submitted that in the circumstances, the District Court ought to have granted stay. He invited my attention to the order dated 10th April 2008 which records that western half portion out of Gat No. 193 has been ordered to be sold. His submission is that the said portion could not have been sold. The learned counsel appearing for the 2nd respondent submitted that error in the description of the property has been corrected. The learned counsel appearing for the petitioner pointed out that an order for issuing a warrant of possession has been passed subsequently. 3. I have considered the submissions. The order of confirmation of sale was passed on 10th April 2008 for sale of the property at the price of Rs. 1,60,000/-. Perusal of the application dated 02nd May 2008 filed by the petitioner for setting aside the auction sale itself records that even as on that date the petitioner had not deposited the amount specified in the proclamation of sale. As pointed out earlier, even according to the case of the petitioner a sum of Rs.98,000/- was deposited by the petitioner on 27th June 2008. A 4 copy of the application at Exhibit 68 praying for permission to deposit the sum amount has been annexed to the petition. Even the said application does not record that a sum of Rs. 98,000/- was deposited by the petitioner in full and final settlement of the claim of the decree holder. Thus, on the face of it, requirement of clauses (a) and (b) of sub rule 1 of Rule 89 of Order XXI of the said Code were not satisfied. The learned counsel appearing for the petitioner submitted that the application was under sub-rule 1 of Rule 90 of Order XXI of the said Code. I find that in the application there is no allegation of irregularity or fraud in publishing or conducting the sale. 4. It is true that the application for stay could not have been rejected on the ground that the appeal was not maintainable and submission made by the learned counsel appearing for the petitioner to that extent appears to be correct. However, the appeal filed by the judgment debtor arose out of the execution of the money decree. Therefore, stay could not have been granted 5 mechanically especially when order of sale in favour of auction purchaser was confirmed. As stated earlier, the application for setting aside the sale made by the petitioner was not in confirmity with the requirement of both sub-rule 1 of Rule 89 and sub-rule 1 of Rule 90 of Order XXI of the said Code. Apart from this, the said application made on 02nd May 2008 was decided by the trial Court by a separate order dated 27th November 2008. The said order directs that a sale certificate shall be issued in favour of the auction purchaser specifically mentioning the proper description of the property on the eastern side which was in possession of the judgment debtor. By the same order the executing Court directed that the petitioner be given refund of Rs.98,000/-. A direction was given to the decree holder to recalculate the arrears and remit the excess amount. It is pertinent to note that the said order dated 27th November 2008 was not challenged in the appeal and the order subject matter of challenge was dated 10th April 2008 of confirmation of sale. 6 5. Considering the aforesaid facts, the order of the Appellate Court declining to grant stay was rightly passed and no case for interference is made out. Accordingly, writ petition is rejected. (A.S.OKA,J)