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Anke Gowda Vs. Fatima Khatum and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 310 of 1949-50
Judge
Reported inAIR1951Kant124; AIR1951Mys124
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 89
AppellantAnke Gowda
RespondentFatima Khatum and ors.
Appellant AdvocateM.P. Somasekhara Rao, Adv.
Respondent AdvocateC.N. Ramaswamy Sastry, Adv. for No. 12
DispositionRevision dismissed
Excerpt:
.....the k.c.f. &s.v. act, 1958. office objection is unsustainable. - it was held that the same was a good deposit within the meaning of order 21, rule 89, civil p. 5. the petitioner has, in my opinion, failed to comply with the requirements of rule 89 of order 21. he has not deposited into court all the amounts required of him under that rule as it cannot be said that the decree-holders had since the date of the proclamation received the amounts which had been brought into court as a result of the sale of the other items. 6. the learned counsel for the petitioner also seeks to rely on the new rule 5 under order 34. but it has clearly no application as the full decree amount plus 5% has not been deposited by the judgment-debtors, including the petitioner, who are all jointly and severally..........case is whether it could be said that the decree-holders have since the date of proclamation of sale received the amount which had been brought into court as a result of the sale of the other items. on the plain reading of the section, that contention does not appear to be reasonable. it has been held so far back as in 1899 in 23 bom. 723, where the facts were similar to those of the present case, that the mere payment of the sale-proceeds into court was not a sufficient compliance with the requirements of section 310(a), civil p. c. (corresponding to rule 89 of order 21) and as it had not been shown that the sale-proceeds had been received by the decree-holder the sale could not be set aside. it was observed that the rule contemplates the actual receipt of the amount by the.....
Judgment:
ORDER

Vasudevamurthy, J.

1. This revision petition has been filed by judgment-debtor 7 against the order of the Additional Subordinate Judge. Bangalore, con-firming that of the Munsiff, Ramanagaram, rejecting an application made by him under Order 21, Rule 89 of the Civil Procedure Code. The facts leading up to the petition are: four items of immovable property were brought to sale by the decree-holders in execution of their mortgage decree. The petitioner who was an alienee of item l was defendant 7 in the case. All the four items were ordered to be sold on 17-5 1949. Before the sale the petitioner filed an application and obtained an order that items 2 to 4 of the mortgaged properties might be sold in the first instance and for the balance of the decree amount, if any, item l in which he was interested might then be sold. Accordingly on the same day items 2 to 4 were sold in the first instance for Rs. 320 in the aggregate and item 1 was sold later for Rs. 410. The amount mentioned in the sale proclamation was Rs. 708 5 0. Respondent 12 purchased all the properties in the court sale held on 17-5-49. On 14 6-49 the petitioner filed an application for cancellation of the sale only of item 1 after depositing into Court as 410 being the price which it had fetched at the sale plus Rs. 21-4-0 being 5% of that purchase money. That application was dismissed by both the Munsiff and the Sub-ordinate Judge. Hence this revision.

2. Mr. M.P. Somasekhara Rau, learned counsel for the petitioner, contends that the deposit which has been made by the petitioner is quite sufficient for the purposes of Order 21, Rule 89, Civil P. C., to set aside the sale of item 1. He argues that the amount for which the other items were sold had already been deposited in Court by the purchaser and as the sales of those items had not been questioned by anybody those sales were bound to be confirmed and the purchase money of those items was bound to be paid to the decree-holders and was as a matter of fact paid to the decree holders after those sales were formally confirmed. There is no doubt that those amounts together with the amount deposited by the petitioner are quite sufficient to cover the amounts required under Order 21, Rule 89, Civil P. C. But the question is as to whether the petitioner has complied with the conditions imposed on him under Order 21, Rule 89 to obtain the benefit of that provision.

3. The relief to be granted under Order 21, Rule 89 is in the nature of a special indulgence and there is no doubt that the person seeking such indulgence should strictly conform to its requirements; see 3 Mys. L. Jour. 254. Order 21, Rule 89 requires that the person applying to have the sale set aside under that rule should deposit in Court for payment to the purchaser a sum equal to 5% of the purchase money and for payment to the decree holder an amount specified in the proclamation of sale, less any amount which may since the date of proclamation of sale have been received by the decree-holder. The short point for decision in this case is whether it could be said that the decree-holders have since the date of proclamation of sale received the amount which had been brought into Court as a result of the sale of the other items. On the plain reading of the section, that contention does not appear to be reasonable. It has been held so far back as in 1899 in 23 Bom. 723, where the facts were similar to those of the present case, that the mere payment of the sale-proceeds into Court was not a sufficient compliance with the requirements of Section 310(a), Civil P. C. (corresponding to Rule 89 of Order 21) and as it had not been shown that the sale-proceeds had been received by the decree-holder the sale could not be set aside. It was observed that the rule contemplates the actual receipt of the amount by the decree-holder and that a mere payment of the sale proceeds into Court does not satisfy the requirements of the section. That case has been followed in Totaram v. Chhotu, A. I. R. (10) 1923 Bom. 299 (2) where Macleod C. J. and Crump J. held that as long as the legislature had decided that only money received by the decree-holder can be taken into account, the Court cannot say that money paid into Court and not put into the pocket of the decree-holder is money received by him. In Karunakara Menon v. Krishna Menon, 39 Mad. 489, where 23 Bom. 723 and Kripa Nath Pal v. Bam Lakshmi Dasya, 1 Cal. W. N. 703 were followed, it was pointed out that Order 21, Rule 89, Civil P. C. is in the nature of an indulgence to the judgment-debtors and that its provisions should strictly be complied with, and the applicant cannot take credit for any amounts paid by co-judgment-debtors who have not joined him in the application and that such credit could be taken only for any amount that may have been actually or constructively received by the decree-holder and not for sums which having been deposited could have been received by him had he been minded so to do. This case has been followed in K. Subbayyar v. Muthayyar, A. I. R. (9) 1922 Mad 54 (1).

4. Mr. Somasekhara Rau has, however, referred to and relied on some other cases which, according to him, are more applicable to the facts of the present case but they are easily distinguishable A. I. R. 1926 Mad. 765 was a case in which a decree had been passed against two different persons separately, each person being only liable to the extent of the decree passed against him. It was, therefore, held in that ease that if the applicant's property is sold to satisfy the decree, he could have the sale set aside by paying the amount due from him alone. 39 Mad. 429 was distinguished on facts and it was observed that when there is a specific mention in the proclamation of sale that certain amount only is realizable by the sale of certain items, it could not reasonably be contended that in order to redeem those items only the whole of the decree amount should be paid. In Panna Lal v. Bhola Nath : AIR1930All843 several properties were sold in execution of a mortgage decree in separate lots to different purchasers. One of the judgment-debtors who was interested in only one of the items deposited the amount for Which that item had been sold plus 5 per cent thereon. It was held that the same was a good deposit within the meaning of Order 21, Rule 89, Civil P. C. It has to be noticed that in that judgment no reference is made to any previously decided cases of other High Courts and the decision appears to have-been mainly, if not wholly, based on the circumstance that the decree-holder was reported to have withdrawn the money fetched at the auction sale in full satisfaction of the decree. This decision has been distinguished in Mannu Naik v. Mathura Prasad : AIR1933All155 . In that case Sulaiman C. J. and Kisch J. held that in order to avail himself of the provisions, of Rule 89 of Order 21 a judgment-debtor must comply strictly with its provisions and that the only amount which he need not deposit is the sum which had been received by the decree-holder between the date of the proclamation and the date of the deposit, or at any rate, before the expiry of 30 days from the date of sale. In that case also several items of property were sold on the same date in separate lots and purchased by different auction-purchasers. An application was made under Order 21, Rule 89 for the setting aside of the sale of one of the items and the applicant deposited only the amount for which it had been sold plus the penalty of 5% but not the whole of the decree amount for which the properties had been put up for sale. It was there held that the decree-holder cannot be deemed to have received the amount deposited by the auction-purchasers before the sale had been actually confirmed; merely because it had been deposited to his credit. Referring to : AIR1930All843 their Lordships observed that 'presumably' the facts before their Lordships who decided : AIR1930All843 were distinguishable from those of 1 Cal. W. N. 703 and A. I. R. (9) 1928 Mad. 54 (1) and was based on certain statements made before them at the Bar that the decree-holder had withdrawn the money as stated above. They further go on to say that

if the learned Judges meant to lay down that the withdrawal of the money by the decree-holder after the expiry of 30 days would fulfil the requirements of the rule, we regret we are unable to agree with that view. The judgment-debtor can take advantage of the provisions of Order 21 E. 89 if he deposits the whole of the amount for which the property had been ordered to be sold minus what had been received by the decree-holder before the expiry of the prescribed time.'

In Raja Gopala Ayyar v. Adinarayana Chettiar, : AIR1933Mad54 also which is another case relied on for the petitioner, the facts were different, as the liability of the applicant's share in the property sold was held to be sufficiently defined in the decree itself to enable him to apply under the proviso to Rule 89 of Order 21. In that case Venkatasubba Rao J. found that the applicant could seek the assistance of the proviso to Rule 89 which was added by way of an amendment to that rule in Madras and which provides that where the immoveable properties sold are liable for the discharge of a portion only of the decree debt, the payment under Clause (b) of the rule need not exceed such amount as under the decree the owner of the property is liable to pay'. Reilly J. who agreed with him also based his decision on the effect of the new proviso and observed that the share of the applicant was liable at the time it was put up for sale for a determined part of the decree debt and therefore in consequence of the 'curious way in which the decree was framed', the applicant was 'fortunately for himself' able to come within the meaning of the proviso.

5. The petitioner has, in my opinion, failed to comply with the requirements of Rule 89 of Order 21. He has not deposited into Court all the amounts required of him under that rule as it cannot be said that the decree-holders had since the date of the proclamation received the amounts which had been brought into Court as a result of the sale of the other items. The sale of item 1 in which he is interested cannot therefore be set aside.

6. The learned counsel for the petitioner also seeks to rely on the new Rule 5 under Order 34. But it has clearly no application as the full decree amount plus 5% has not been deposited by the judgment-debtors, including the petitioner, who are all jointly and severally liable under the decree.

7. In the result I see no reason to interfere with the orders of the Courts below. This revision petition is therefore dismissed. No costs.


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