Where Act, 2002. [Second proviso to O. XXI

Where any property is sold in execution of a decree pending the final disposal of any claim to, or an objection to the attachment of such property, the court shall not confirm such sale until the final disposal of such claim or objection. Where such application is made and allowed and where, in the case of an application under R. 89, the deposit required by that rule is made within thirty days from the date of sale, or in case where the amount deposited under R. 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the court, the court shall make an order setting aside the sale provided that no order shall be made unless notice of the application has been given to all persons affected thereby. [O. 21, R.

92 (2)]. The deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002. [Second proviso to O. XXI R. 92 (2)]. No suit to set aside an order made under R. 92 shall be brought by any person against whom such order is made. Where a third party challenges the judgment-debtor’s title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.

[O. 21, R. 92 (4)]. If the suit referred to in sub-rule (4) is decreed, the court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the court otherwise directs be received at the stage at which the sale was ordered. [O. 21, R. 92 (5)].

(For setting aside the sale under rules 89, 90 and 91 of Order 21, please see answer to Q. No. 146).

Besides the above provisions the court has an inherent power to set aside an auction sale if the decree in question has been obtained by fraud, or if it appears to have been passed by a court without jurisdiction, or if subsequently to the passing of the decree and pending the execution proceeding it has been set aside by a court of appeal.

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