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Dattatraya Krishna Ashtaputre Vs. Jagannath Ahamrao Deshpande - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Revisional Application No. 19 of 1928
Judge
Reported in(1929)31BOMLR433; 117Ind.Cas.527
AppellantDattatraya Krishna Ashtaputre
RespondentJagannath Ahamrao Deshpande
Excerpt:
.....rule 89 is a statutory one, and we think that it cannot be satisfied in the manner in which it has been held to have been done in this case by the learned district judge......with, and he refused to set aside the sale. bat, on appeal to the district court, the learned district judge was of opinion that there had been a substantial compliance with the rule, and he, therefore, set aside the lower court's order, and directed that:-if the appellant pays into this court within ten days the sum of rs. 1,076-8-0 for payment to the auction purchaser, the sale shall be sat aside. if the money is not paid within ten days, the sale shall be made absolute.5. this is the order with which we have to deal, the reasons which actuated the learned district judge in coming to the decision which he reached were that the provisions of sub-clause (a) of the rule had been complied with by the payment of rs. 55 being five per cent, of the highest bid to be paid to the.....
Judgment:

Murphy, J.

1. This is a revision application against the judgment of the learned District Judge of Satara, in the matter of the execution of a decree.

2. The facts were, that the judgment-debtor's property was put up for sale, and was sold. After this had been done the judgment-debtor made an application under Order XXI, Rule 89, of the Civil Procedure Code, and deposited Rs. 1,076, in Court; Rs. 1,005 equalling the amount realized at the auction sale, Rs. 58 representing the five per cent, of the purchase money, required to be paid to the purchaser, and Rs. 16 being poundage. The sum specified in the proclamation of sale had been Rs. 1,384.

3. The question now before us is, whether this payment by the judgment-debtor was sufficient to comply with the provisions of Rule 89 of Order XXI. It appears that when these proceedings were taken in the Subordinate Judge's Court, the plaintiff had made an application stating that:-

In the above mentioned matter the property has been sold by auction and the amount has come into the Court. Plaintiff and defendant are negotiating for a compromise for the remaining sum which is due. Plaintiff does not want to claim that sum for the present. It is prayed that this darkhast should be disposed of.

The judgment debtor also made an application to the same purpose, stating that he had deposited the amount of Rs 1,076 in Court, that the plaintiff had applied to the effect that she did not wish to claim the sum remaining due on the darkhast, and that the debt, so far as this darkhast went, had been satisfied. He, therefore, prayed that the sale which had taken place should be set aside.

4. In dealing with this application, the learned Subordinate Judge held that the rule had not been complied with, and he refused to set aside the sale. Bat, on appeal to the District Court, the learned District Judge was of opinion that there had been a substantial compliance with the rule, and he, therefore, set aside the lower Court's order, and directed that:-

If the appellant pays into this Court within ten days the sum of Rs. 1,076-8-0 for payment to the auction purchaser, the sale shall be sat aside. If the money is not paid within ten days, the sale shall be made absolute.

5. This is the order with which we have to deal, The reasons which actuated the learned District Judge in coming to the decision which he reached were that the provisions of Sub-clause (a) of the rule had been complied with by the payment of Rs. 55 being five per cent, of the highest bid to be paid to the purchaser, and that Clause (b), being intended to guard the interests of the decree-holder and to ensure the judgment-debtor a locus poenitentice 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. He thought that the case was not on exactly the same footing as that of Manaji Kuverji v. Aramita I.L.R(1921) . 46 Bom. 171 which he distinguished, and passed the order in question.

6. I think, however, that no real distinction can be drawn between that case and the present one. In the reported case Sir Norman Macleod C.J. held that (p. 175):-.an undertaking to pay a certain amount is nob payment, and, as has been laid down in previous decisions, the provisions of Rule 89 are a concession allowed to judgment-debtors, and 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....

7. In the present case also I think that the provisions of the rule have not been complied with. What is required to be deposited for payment to the decree-holder is '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'. Admittedly, that has not been done in the present case. The amount mentioned in the proclamation of sale was Rs. 1834 and nothing is admitted to have been received by the decree-holder since the date of the proclamation. In fact, what we are asked to hold is that the difference between the two sums, that paid in and that mentioned in the proclamation of sale, was received by the decree-holder; while all that she admitted was that she did not wish to proceed any further with this particular darkhast to recover it. The requirement of Rule 89 is a statutory one, and we think that it cannot be satisfied in the manner in which it has been held to have been done in this case by the learned District Judge.

8. We must, therefore, set aside the order of the District Court, and restore that of the Subordinate Judge, and make the rule absolute. Respondent to pay all the costs in this Court and in the District Court.


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