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Nirmal Joseph (Medical Practice)     20 October 2010

Appeal in HC on an order

Hi,

The following is the extract of an order. Please go through and provide your valuable suggestions.


A Petition was filed under Order XXI rule 89 Section 151 of CPC to set aside the sale of A & B Scheduled properties held on 11.03.2010 and 25.03.2010. The Petitioner is the respondent in an EP. The A & B Schedule properties in EP were proclaimed for sale on 11.03.2010 and the amount specified in the proclamation of the sale is Rs.14Lakhs. (But the present Market value of the property is more than two Crores)

The Amended order 21 Rule 92 (2) required in case of an application under Order 21 Rule 89 the deposit to be made within 60 days from the date of sale.

The Application in question and the amount under sale proclamation were made on 31.05.2010 which is beyond 60 days period because the Court was on vacation. The Hon’ble Judge pointed out that though during the course of the argument the Petitioner’s Counsel said that the amount could not be deposited before the expiry of the 60days due the court vacation, the affidavit filed in support of the Petition did not explain as to why the Petitioner did not move the vacation Court for the same purpose. Stating this reason, the application was dismissed.

I have the following quarries:

Is it possible to file the application and make the payment in vacation court?

If so, because there is a delay of few days, would a proper delay connotation application save the petitioner?

Can the petitioner go for an appeal?
If possible, under what grounds?

Thanks,
Nirmal



Learning

 3 Replies

adv. rajeev ( rajoo ) (practicing advocate)     20 October 2010

I have already answered your question in expert column.  In a vacation court such application wont be entertained.

Devajyoti Barman (Advocate)     20 October 2010

Right.

shrikant chede (law officer)     26 October 2010

Right


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