Skip to content


Siddaveerappa and anr. Vs. Jalal Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Limitation
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 649 of 1951-52
Judge
Reported inAIR1953Kant87; AIR1953Mys87; ILR1953KAR570; (1954)32MysLJ98
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 89, 90 and 92; Limitation Act, 1908 - Schedule - Article 166
AppellantSiddaveerappa and anr.
RespondentJalal Khan and anr.
Appellant AdvocateM. Sadanadaswamy, Adv.
Respondent AdvocateNittoor Srinivasa Rao, Adv.
Excerpt:
.....- court held that amount to be deposited under order 21 rule 89 (b) would be amount mentioned in sale proclamation and not decree amount - court however held that after acceptance of sale bid trial court ought to had given parties 30 days time and directed it to proceed afresh after giving parties 30 days time. - constitution of india articles 226 & 227; [anand byrareddy, j] bangalore-mysore infrastructure corridor project (bmic project) petitioners frame-work agreement with government of karnataka - inordinate delay on the part of the respondents with regard to shifting or diverting certain utilities which are clashing with the right of way of the link road and the peripheral road failure to perform its obligation by respondents (bwssb etc.,) writ petition held, having ..........this matter came up in appeal has held that what has been deposited is the amount mentioned in the sale proclamation and not the decree amount. the learned additional district judge is no doubt correct in holding that what has to be deposited under order 21, rule 89 is the amount mentioned in the sale proclamation as mentioned in clause (b) of that rule. the learned munsiff relies upon the wording of that rule which is as follows: '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.....'. it is clear that the rule lays down that the amount that has to be deposited is that mentioned in the sale.....
Judgment:
ORDER

1. This is a revision petition against the order in Misc. Appeal No. 27/50-51 on the file of the Additional District Judge, Mysore, setting aside the order of the learned Munsiff Nanjangud, in Execution Case No. 1320/46-47 and confirming a sale held in that execution case.

2. The property concerned was brought to sale on 19-5-48- The decree-holder had applied for permission to bid and permission had been given for purchasing the property for a sum not less than Rs. 700/-. A stranger purchaser however purchased the property for Rs. 450/-. The Process Nazir who held the sale did not accept the bid and reserved the right of accepting the bid but placed the matter before the Court. The case came up before the Court on 23-5-48. On that date, the judgment-debtor stated that he would deposit the decree amount due to the decree-holder in ease the acceptance of the bid was postponed. The case was thereafter brought up on a subsequent date. The judgment-debtor had not paid the money as promised. The bid was accepted and the sale was also confirmed on 21-6-48. On appeal, this order was confirmed but when the matter came up before this Court in revision against that order it was pointed out that

'since there was no acceptance of the bid till21-6-48, the sale is deemed to have beenaccepted on that date, and hence, the confirmation' of the sale without giving time to the parties to file an application either under Order 21, Rule 89 or Rule 90 is incorrect and untenable.'

The order of the learned Munsiff was therefore set aside. It was represented that the amount deposited was sufficient to satisfy the decree and it was felt that if it was so, there would be no need for further proceedings. As however it was not clear that the amount deposited subsequently was sufficient to satisfy the decree the case had to be remanded.

3. The Courts below proceeded to consider whether the amount deposited was sufficient to satisfy the requirements of a deposit under Order 21, Rule 89. The learned Munsiff has held that the amount that has to be deposited under Order 21, Rule 89 is the decree amount due to the decree-holder and as such he has cancelled the sale and ordered satisfaction of the decree in view of his finding that what had been deposited is sufficient to cover the decree amount. The learned Additional District Judge before whom this matter came up in appeal has held that what has been deposited is the amount mentioned in the sale proclamation and not the decree amount. The learned Additional District Judge is no doubt correct in holding that what has to be deposited under Order 21, Rule 89 is the amount mentioned in the sale proclamation as mentioned in Clause (b) of that rule. The learned Munsiff relies upon the wording of that rule which is as follows:

'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.....'.

It is clear that the rule lays down that the amount that has to be deposited is that mentioned in the sale proclamation. In fact it will be found that the amount due under the decree on the date of an application under Order 21, Rule 89 will be much more than the amount mentioned in the sale proclamation on the date of the deposit under Order 21, Rule 89 as subsequent interest and costs incurred subsequent to the drawing of the sale proclamation will have to be in-duded. All the same the Code has purposely confined the amount to be deposited under Order 21, Rule 89 to what is mentioned in the sale proclamation. There is evidently a good reason forthe Code making a provision that the amount that has to be deposited is that mentioned in the sale proclamation rather than the decree amount and that the reason is that it may not be easy for the judgment-debtor to find out within limited time he has, the exact decree amount due to the decree-holder and it will be very much easier for the judgment-debtor todeposit what is mentioned in the sale proclamation as this is a definite amount while the decree-holder is in no way prejudiced as he can later on recover the balance. It may be in some cases that by mistake the amount mentioned in the sale proclamation is much more than what is really due to the decree-holder but in such cases nothing comes in the way of the judgment-debtor depositing the amount in the sale proclamation requesting the Court to pay the amount due towards the decree to the decree-holder and the balance to him.

Though the learned Munsiff has rot relied onthe decision reported in -- 'Uda Bai v. Ram Autar Singh', AIR 1934 Lah 790 (A) he couldhave very well relied on it as it has been held in that case that:

'Where the decretal amount is wrongly stated in the proclamation of sale through mistake as being less than the original decretal amount, the judgment-debtor cannot be allowed to take advantage of such a mistake. Therefore if he deposits the amount less than the decretal amount taking advantage of such a mistake he does not comply with the Provisions of Rule 89.'

With very great respect, I would rather follow what is laid down in the Code itself rather than what has been laid down in this decision. In cases of this kind the amount to be deposited under Order 21, Rule 89 (b) is the amount mentioned in the sale proclamation and the solatium and not the decree amount.

4. As has already been held in -- 36 Mys HCR 284' (B) that the date on which the bid was accepted by the Court must be deemed to be the date of the sale and that the actual date on which the sale was held should not be taken as the starting point. As the amount deposited falls short of the amount mentioned in the sale proclamation the sale has to be confirmed though the amount is said to be sufficient for satisfying the decree. It is contended that the amount mentioned in the sale proclamation is more than the decree amount and is not the correct amount and the sale is liable to be set aside. That however is a matter that does not arise at this stage and no application for that purpose has been filed. There is however substance in the contention that no such application could have been filed as the sale was confirmed on the day the bid was accepted. The learned Munsiff should have after accepting the bid posted the case beyond 30 days from the date of confirmation to enable the judgment-debtor to file an application under Order 21, Rule 89 depositing the amount mentioned in the sale proclamation and the solatium or to file an application to set aside the sale under Order 21, Rule 90. The learned Munsiff's failure to do so has deprived the judgment-debtor an opportunity to file such applications as the sale was confirmed on the date of the acceptance of the bid. The right of the judgment-debtor cannot be taken away by the Court confirming the sale within 30 days, from the date of acceptance of the bid. The orders o the Courts below are therefore set aside under the circumstances of the case.

To avoid any further confusion the order accepting the bid along with the order confirming the sale is set aside; the learned Munsiff will take the execution case again on his file and after notice to the parties pass an order in the manner in which he ought to have done, that is he will accept the bid and post the case for confirmation to some date beyond 30 days from the date on which he accepts the bid. It will follow that in case such an amount as is necessary to make up the amount mentioned in the sale proclamation is deposited within 30 days of the said order the sale will have to be set aside. If, however, the amount now in deposit is sufficient to satisfy the decree he will direct satisfaction of the decree and it is unnecessary for him to accept the bid at all and the sale held will stand cancelled. The parties will bear their own costs throughout subsequent to the previous order of remand and up to date.

5. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //