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Amritlal Narsilal Shah Vs. Sadashiv Anna Malekar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 126 of 1943
Judge
Reported inAIR1944Bom233(2); (1944)46BOMLR432
AppellantAmritlal Narsilal Shah
RespondentSadashiv Anna Malekar
DispositionApplication dismissed
Excerpt:
.....the auction-purchaser that he had no objection to the sale being set aside are points out that the decree-holder who had raised the objection in the executing court is apparently satisfied with the order passed by the learned district judge and has not joined the auction-purchaser in this revision application. 16 for poundage, as well as rs. 767) :if the privilege is purely personal, if the interests of third parties are not affected and in particular if there is no question of public interests or policy, no doubt the maxim is good law. but where a privilege is conferred for reasons of public policy, it is very well settled that it cannot be waived. it is true that the decree-holder has not made any application to this court to have the order of the learned district judge set aside, but..........450 on december 11, 1941. it was stated in the proclamation of sale that the amount payable to the decree-holder was rs. 450-8-0 together with interest at six per cent, per annum on rs. 439-4-0 from. january 29, 1937, to december 11, 1941. on january 9, 1941, that is to say within thirty days after the auction sale, the judgment-debtor deposited in court rs. 595 and made an application under order xxi, rule 89, of the civil procedure code, 1908, to have the sale set aside. he stated in the application that the amount to be deposited would be rs. 22-8-0 representing five per cent, of the auction price of rs. 450, rs. 450-8-0 the principal due to the decree holder and rs. 118-8-0 interest on rs. 439-4-0 as stated in the sale-proclamation. thus the total amount payable to the.....
Judgment:

Lokur, J.

1. In execution of a money decree obtained by opponent No. 2 against opponent No. 1 the latter's lands were attached and sold by auction to the petitioner for Rs. 450 on December 11, 1941. It was stated in the proclamation of sale that the amount payable to the decree-holder was Rs. 450-8-0 together with interest at six per cent, per annum on Rs. 439-4-0 from. January 29, 1937, to December 11, 1941. On January 9, 1941, that is to say within thirty days after the auction sale, the judgment-debtor deposited in Court Rs. 595 and made an application under Order XXI, Rule 89, of the Civil Procedure Code, 1908, to have the sale set aside. He stated in the application that the amount to be deposited would be Rs. 22-8-0 representing five per cent, of the auction price of Rs. 450, Rs. 450-8-0 the principal due to the decree holder and Rs. 118-8-0 interest on Rs. 439-4-0 as stated in the sale-proclamation. Thus the total amount payable to the auction-purchaser was Rs. 22-8-0 and that payable to the decree-holder was Rs. 569. Although the amount to be deposited thus came to Rs. 591-8-0, still he produced Rs. 595 in order to allow for any error in calculation. Notices were duly served upon the auction-purchaser and the decree-holder as required by the proviso to Order XXI, Rule 92(2). The auction-purchaser put in a purshis stating that he had no objection if the auction sale was set aside. Three weeks thereafter the decree-holder put in a purshis stating that the interest due to him according to the proclamation was Rs. 128-3-0 and, therefore, the judgment-debtor had deposited Rs. 6-3-0 less than the amount due to him. He, therefore, contended that the sale should not be set aside and also added that if the Court decided to set aside the sale, then Future interest should be awarded to him. The executing Court found that the amount deposited by the judgment-debtor was short by Rs. 6-3-0. The judgment-debtor produced that amount in April, 1942, admitting that he had committed a mistake in the calculation of the interest. But the executing Court held that as the full amount required to be deposited under Order XXI, Rule 89, had not been deposited in time, the sale could not be set aside. The judgment-debtor appealed to the District Court, and the learned District Judge, while realising the principle laid down in Manaji Kuverji v. Aramita I.L.R. (1921) 46 Bom. 171 that the provisions of Order XXI, Rule 89, ought to be strictly complied with before the judgment-debtor can take advantage of the concession, thought that there was an irregularity in drawing up the sale-proclamation as the specific amount payable under the decree was not stated and that it would not be equitable to put the judgment-debtor at a disadvantage by insisting upon the strict compliance of the rule. As there was a small error in calculation, the learned District Judge condoned it as it was a bona fide mistake and set aside the sale, but ordered future interest to be paid to both the auction-purchaser and the decree-holder. It is against that order that the auction-purchaser has come to this Court in revision.

2. Order XXI, Rule 89(1), provides :

Where immoveable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court,-

(a) for payment to the purchaser, a sum equal to five per cent, of the purchase money, and

(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

3. Both the application and the deposit must be made withing thirty days from the date of sale and the deposit of the amounts specified in Clauses (a) and (b) is a sine qua non of the right of the judgment-debtor to make such an application. If no such application or an application under Order XXI, Rule 90, or Rule 91, is made, the Court is bound to make an order confirming the. sale and thereupon the sale shall become absolute under Order XXI, Rule 92(1). As observed in Manaji Kuverji v. Aramita I.L.R. (1921) 46 Bom. 171 the provisions of Order XXI, Rule 89, must be strictly complied with if the judgment-debtor wants to take advantage of the concession given to him by that rule. It is not disputed that the amount deposited by the judgment-debtor within the period of limitation was short by Rs. 6-3-0 and, therefore, the requirements of Order XXI, Rule 89(1), were not strictly complied with. The executing Court had, therefore, no jurisdiction to entertain the judgment-debtor's application to have the sale set aside, since that rule says that he can apply only on depositing the amounts specified in Clauses (a) and (b).

4. Mr. Dixit for the judgment-debtor relies upon the purshis given by the auction-purchaser that he had no objection to the sale being set aside are points out that the decree-holder who had raised the objection in the executing Court is apparently satisfied with the order passed by the learned District Judge and has not joined the auction-purchaser in this revision application. He has relied upon the rule expressed by the maxim of law quilibet potest renuntiare juri pro se introducto, any one may renounce a law introduced for his own benefit. Referring to this maxim Mr. Justice Mookerjee observed in Ashutosh Sikdar v. Behari Lal Kirtania I.L.R. (1907) Cal. 61

When the object of the statute has been determined, if the statutory provision is not based on grounds of public policy, and is intended only for the benefit of a particular person or class of persons, the conditions prescribed by the statute are not considered as indispensable and may be waived, because every one has a right to waive, and to agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, and which may be dispensed with without infringement of any public right or policy.

5. If the decree-holder also had similarly not raised any objection and it had not come to the notice of the executing Court that the amount deposited by the judgment-debtor was short, then perhaps the executing Court might have been justified in setting aside the sale. But when once it was brought to the notice of that Court that the requirements of Order XXI, Rule 89, were not complied with, then it had no jurisdiction to entertain the application itself, and in the absence of such a proper application the sale had to be confirmed under O XXI, Rule 92(1). Moreover, it cannot be said that the statutory requirement of the deposit within thirty days is intended merely for the benefit of the auction-purchaser and the decree-holder but also to maintain the solemnity of Court sales as a matter of public policy, and there is no provision or excusing the delay in the deposit of the full amount as required by the rule.

6. In Dattatraya v. Jagannath (1928) 31 Bom. L.R. 433 after the auction sale was held the judgment-debtor deposited within thirty days five per cent, of the sale proceeds and Rs. 16 for poundage, as well as Rs. 1,005 to be paid to the decree-holder, and made an application under Order XXI, Rule 891 (2), stating that the parties were negotiating for a compromise for the remaining sum due to the decree-holder. The decree-holder also stated that she did not want ' to claim, that sum for the present'. The learned District Judge was of opinion that there was a substantial compliance with the rule and directed that if the judgment-debtor paid into Court within ten days the balance due the sale would be set aside. He held in effect that the full amount of five per cent, had been deposited for being paid to the auction-purchaser and that Clause (b) of Order XXI, Rule 89(1), being intended to guard the interests of the decree-holder and to ensure the judgment-debtor a locus poenitentiae and an opportunity to recover his property, had been virtually complied with; since what had happened was that the judgment-creditor had in effect waived the claim for the balance and had received satisfaction. But it was held by a division bench of this Court that the requirement of Rule 89 was a statutory one and it could not be satistfied in the manner in which it had been held to have been done. The plea of waiver was thus not upheld although neither the auction-purchaser nor the decree-holder was keen to have the sale confirmed nor was any one interested in objecting to its being set aside.

7. Moreover, Order XXI, Rule 89, is intended to be a mere concession to a judgment debtor and so to say an exception to the finality of an auction sale solemnly held by a Court. As pointed out by Broomfield J. in Post Master General, Bombay v. Chenmal Mayachand : (1941)43BOMLR758 there are many exceptions to the principle contained in the maxim relied upon by Mr. Dixit (p. 767) :

If the privilege is purely personal, if the interests of third parties are not affected and in particular if there is no question of public interests or policy, no doubt the maxim is good law. But where a privilege is conferred for reasons of public policy, it is very well settled that it cannot be waived.

8. It also appears that when the auction-purchaser put in his purshis he did not know that the amount deposited by the judgment-debtor was insufficient, and an admission made in ignorance of his rights cannot be held to be binding on him. Although he did not want to object, the decree-holder did object to the setting aside of the sale. It is true that the decree-holder has not made any application to this Court to have the order of the learned District Judge set aside, but none-the-less the auction-purchaser can insist upon a strict compliance with the conditions required for an application under Order XXI, Rule 89 (1) in spite of the fact that he, in ignorance of his rights, failed to raise an objection in the executing Court. The purshis of the decree-holder was put in after the auction-purchaser stated that he had no objection. There is nothing to show that subsequently he did not oppose the judgment-debtor's appeal in the District Court. In fact he appeared through a pleader and joined hands with the decree-holder. The petitioner cannot, therefore, gain any advantage from the purshis of the auction-purchaser in the executing Court. The application itself being defective from its inception, it must he deemed that there was no proper application under Order XXI, Rule 89, and under Rule 92(1) the executing Court was bound to confirm the sale. The learned District Judge was apparently swayed by equitable considerations, but they cannot override the imperative provisions of Order XXI, Rule 89.

9. I, therefore, make the rule absolute, set aside the order of the District Judge and restore that of the executing Court. As the case is a hard one for the judgment-debtor and in view of the purshis given by the petitioner in the executing Court, I direct the parties to bear their own costs throughout.


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