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Muppannappa Kannappa Gastiyavar Vs. Fakiragouda Chanbasangouda Gangangoudar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 598 of 19+47
Judge
Reported inAIR1949Bom213; (1949)51BOMLR242
AppellantMuppannappa Kannappa Gastiyavar
RespondentFakiragouda Chanbasangouda Gangangoudar
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 89; order iii, rule 2-application to set aside sale on deposit-deposit made by mortgagee on behalf of and under direction of judgment-debtor-legality of such payment.;under order xxi, rule 89, of the civil procedure code, 1908, the personal attendance of the judgment-debtor is not necessary when paying the money in court. all that is necessary is that the deposit should be made on behalf of the judgment-debtor and under his directions.;a judgment-debtor had mortgaged his property after the property had been sold in execution. in the mortgage deed it was provided that] the mortgagee should keep with himself, out of the amount advanced by him, a certain amount. this was for the purpose of depositing the amount in court to set aside the..........that as order xxi, rule 89, interferes with vested interests which have come into existence by the sale of the property, the rule must be strictly construed, and what is required by the rule and what is mandatory is that the application must be made by the judgment-debtor. what is also required by the rule and what is also mandatory is that the deposit of the amount must be the deposit by and of the judgment-debtor. but the rule does not require that the judgment-debtor for instance cannot send his clerk with the money to the court to make the deposit. it would be absurd to construe the rule to mean that the judgment-debtor himself must walk to the court and with his own hands pay the amount to the proper officer of the court. so long as we have the position that the judgment-debtor is.....
Judgment:

M.C. Chagla, C.J.

1. The facts leading up to this civil revision application are that a money decree was passed against the judgment-debtor, applicant No. 1, and his judgment-creditor applied for the execution of that decree by attachment of certain lands belonging to the judgment-debtor. The execution proceedings were transferred to the Collector and the Collector sold the attached lands on December, 28, 1944. This property was purchased at the auction sale by opponent No. 2. On January 13, 1945, the judgment-debtor mortgaged the property to applicant No. 2 and it was provided in the mortgage deed that applicant No. 2 should keep with himself a sum of Rs. 1,750 out of the mortgage amount which was advanced to the judgment-debtor for the purpose of depositing the amount in Court to set aside the auction sale which had taken place. On January 15, 1945, this sum of Rs. 1,750 was deposited in Court by the mortgagee. On January 27, 1945, a joint aplication was made by the mortgagee and the judgment-debtor to set aside the sale. The learned Judge before whom the application came rejected the application holding that the deposit was made by the mortgagee and not by the judgment-debtor and, therefore, he could not set aside the sale. The matter went in appeal and the lower appellate Court took the same view. Now the matter, comes before us in civil revision application.

2. The application to set aside the sale has been made by the judgment-debtor. The money that was deposited, viz. Rs. 1,750, belonged to the judgment-debtor and it was under the directions of the judgment-debtor that the amount was deposited by the mortgagee. It is true that the physical act of depositing the amount, was performed by the mortgagee and not by the judgment-debtor, and Mr. Hattyangadi, on behalf of the opponents, contends that under Order XXI, Rule 89, not only the application has got to be made by the judgment-debtor to set aside the sale, but the deposit has to be made by the judgment-debtor in person. According to him the law requires that the deposit should be either by the judgment-debtor in person, or if he does not want to make the deposit, he must proceed under Order Ill, Rule 2, and must have a recognised agent for the purpose of performing that act. In our view, that is taking much too technical and also an erroneous view of the provisions of Order XXI, Rule 89. It is true that as Order XXI, Rule 89, interferes with vested interests which have come into existence by the sale of the property, the rule must be strictly construed, and what is required by the rule and what is mandatory is that the application must be made by the judgment-debtor. What is also required by the rule and what is also mandatory is that the deposit of the amount must be the deposit by and of the judgment-debtor. But the rule does not require that the judgment-debtor for instance cannot send his clerk with the money to the Court to make the deposit. It would be absurd to construe the rule to mean that the judgment-debtor himself must walk to the Court and with his own hands pay the amount to the proper officer of the Court. So long as we have the position that the judgment-debtor is sending his own money for deposit and the deposit is being made by some one who does it under the directions of the judgment-debtor, the rule is satisfied.

3. Our attention has been drawn to a decision of the Allahabad High Court in Syed line Hasan v. Din Dayal : AIR1931All449 In that case Mr. Justice Sen took the view that under Order XXI, Rule 89, the deposit must be made by the judgment-debtor in person, or by a recognised agent under Order III, Rule 2. With great respect to the learned Judge, we are unable to take the same view of the law and we might point out that the learned Judge had not before him an earlier decision and a. decision of a divisional bench of his own Court which is reported in Madhuri Saran v. Bishamhhar Nath. I.L.R. (1927) All. 839 In that case the judgment-debtors had mortgaged their property after the property had been sold in execution, and the judgment-debtors and the mortgagees, by means of separate applications, paid into Court the amount needed to get the sale set aside, one party tendering approximately two-thirds of the amount and the other one-third; and Justice Sir Cecil Walsh and Mr. Justice Banerji held that there was nothing illegal in payment being made in that way and that the two payments should be treated as one and as being the payment of the judgment-debtors. Then there is a decision of the Madras High Court which has taken the same view as we are suggesting to be the correct view. The decision is reported in Hanumayya v. Bapanayya [1945] Mad. 566 and the view that Sir Lionel Leach, Chief Justice, and Mr. Justice Wadsworth took was that the personal attendance of the j udgment-debtor was not necessary when paying the money. All that was necessary was that the deposit should be made on behalf of the judgment-debtor and under his directions. Both these conditions are satisfied here. The mortgagee has paid the amount on. behalf of the judgment-debtor and under his directions.

4. We, therefore, set aside the order of the executing Court and set aside the sale. Applicants to get the costs in this Court. No order as to costs in the Courts below.

5. Rule in stay application made absolute. No order as to costs.


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