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Manaji Kuvarji Vs. Aramita - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 9 of 1921
Judge
Reported in(1921)23BOMLR847
AppellantManaji Kuvarji
RespondentAramita
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xxxi, rull 89 -execution of decree-decree for sale of mortgaged property-auction sale-deposit in court- application to set aside the sale on part payment-part payment is not payment under rull 89.;defendant no. 1 as mortgagor was ordered to pay into court rs. 1,20,497 and interest and costs for payment to the mortgagees. the defendant having made default in payment, a decree absolute for sale was made and two of the mortgaged properties were directed to be sold and the net proceeds to be applied towards the satisfaction of the decretal amount. the sale took place on 5th august 1920 and the properties were purchased by defendant no. 8. on 4th september 1920, defendant no. 1 brought into court rs. 98,000 plus five per cent, and submitted that as..........for payment to the plaintiff and other defendants who were mortgagees. default having been made in payment, a decree absolute for sale was made on the 17th june 1918, and two of the mortgaged properties belonging to the first defendant were directed to be sold and the net proceeds to be applied towards the satisfaction of the decretal amount. the sale was held on the 5th august 1920 and the auction purchaser was the eighth defendant de souza.2. on the 29th day after the sale, i.e., the 4th september 1920, the first defendant brought into court rs 98,000 plus 5 per cent, with an affidavit stating ' as no amount was specified in the particulars and conditions of the sale as that for the recovery of which the sale was ordered i am unable to ascertain the full amount of the decree and to pay.....
Judgment:

Norman Macleod, Kt., C.J.

1. On the 10th January 1918 the 1st defendant as mortgagor was ordered to pay into Court Rs. 1,20,497 and interest and costs when taxed for payment to the plaintiff and other defendants who were mortgagees. Default having been made in payment, a decree absolute for sale was made on the 17th June 1918, and two of the mortgaged properties belonging to the first defendant were directed to be sold and the net proceeds to be applied towards the satisfaction of the decretal amount. The sale was held on the 5th August 1920 and the auction purchaser was the eighth defendant De Souza.

2. On the 29th day after the sale, i.e., the 4th September 1920, the first defendant brought into Court Rs 98,000 plus 5 per cent, with an affidavit stating ' as no amount was specified in the particulars and conditions of the sale as that for the recovery of which the sale was ordered I am unable to ascertain the full amount of the decree and to pay the same into Court with this application. The moment it is calculated and ascertained I will pay the same into Court.'

3. Notice was then issued to the judgment-creditors and the auction purchaser to show cause why the sale should not be set aside. The purchaser opposed the notice contending that the 1st defendant had not complied with the provisions of Order XXI, Rull 89. That was perfectly clear from the admitted facts of the case. But it was contended that a part payment of the amount due to the decree-holder, with an undertaking to pay the balance, amounted to a deposit within the meaning of Rull 89 of Order XXI, and that, therefore, entitled the parson giving the undertaking to an order setting aside the sale.

4. Now an undertaking to pay a certain amount is not payment. and as has been laid down in previous decisions the provisions of Rule 89 are a concession allowed to judgment-debtors, they must be strictly complied with in order to enable the judgment- debtor to obtain the advantage of the concession. If part payment coupled with an undertaking to pay the balance were to be considered as payment in full then the provisions of the rule would not be complied with. So the decision of the trial judge was correct and the appeal must be dismissed with costs to the 8th defendant.


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