A.R. Somnath Iyer, J.
1. The petitioner in this revision petition was the judgment-debtor in execution proceedings against whom certain properties were brought to sale and sold in lots at the instance of the decree-holder. The decree-holder purchased four items of properties and respondent 3 purchased three lots. The sale was held on June 10, 1957.
2. On July 10, 1957, the judgment-debtor made an application in- which he stated that the decree had been adjusted out of Court by the payment of a sum of Rs. 1225/- by the judgment-debtor to the decree-holder and by the agreement between the parties for the recovery of the balance of the decretal amount in due course after the remission of a part thereof. The five per cent solatium which had to be deposited for payment to the auction-purchaser was also deposited in Court. But the Courts below dismissed the judgment-debtor's application on the ground that since the entire amount of the decree had not been paid by the judgment-debtor to the decree-holder, which alone in their opinion, could constitute an adjustment, the application which was presented under Rule 89 of Order XXI of the Code of Civil Procedure, could not lie. The Courts below accordingly refused to set aside the sale.
3. In this revision petition, the judgment-debtor complains that the construction placed by the Courts below on the adjustment on which he relied is entirely mistaken. H seems to me that Mr. Vittal Rao is right in asking me to take that view although Mr. Datar presented an argument to the contrary and contended that so long as the entire decree was not wiped out and satisfied, the arrangement on which the judgment-debtor depended would not amount to an adjustment.
This argument which found favour with the Courts below, entirely overlooks the distinction between the payment of the decretal amount to the decree-holder and an adjustment of the decree, both of which can be pleaded, under the provisions of Rule 2 of Order XXI of the Code of Civil Procedure. This case was one in which part OT the amount of the decree was paid by the judgment-debtor to the decree-holder and there was an arrangement reached between the parties for the recovery of the balance of the decretal amount. It is difficult to understand how anyone can suggest that this is not an adjustment. In my opinion, the Courts below were therefore in error in thinking that there was no adjustment of the decree such as would fall within the purview of Rule 2 of Order XXI of the Code of Civil Procedure.
4. Ordinarily, what I have said so far would have been sufficient to ensure the success of this revision petition. But Mr. Datar contends that the petitioner cannot succeed in this revision petition since the application which was made under Rule 89 of Order XXI of the Code of Civil Procedure was presented in the wrong forum. He has pointed out that the sale was held in this case not by the executing Court but by the Collector to whom the decree had been transferred for execution under the provisions of Section 68 of the Code of Civil Procedure. That being so, it was contended that the application together with the deposit of the five per cent solatium payable to the auction-purchaser should have been made to the Collector and not to the executing Court which it was argued had no jurisdiction or competence to deal with that application.
5. Now, it is well settled law as pointed out by this Court in Shivaji Rao v. Niranjaniah, 39 Mys LJ 587: (AIR 1962 Mys 36) that if there is an adjustment of the decree between decree-holder and the judgment-debtor and that adjustment is reported to the Court through an application presented under Rule 89 of Order XXI of the Code of Civil Procedure and it is accompanied by the deposit of the five per cent solatium payable to the auction-purchaser, the application is one properly presented under Rule 89 of Order XXI of the Code, entitling the judgment-debtor to a cancellation of the sale.
6. Mr. Datar does not dispute that it is so as indeed he cannot, having regard to the declaration of the law on that matter by this Court. But he urges that this is a case in which the matter is complicated by the fact that the application was presented not to the Collector who had sold the property but to the Court which had transferred the decree to the Collector for execution.
Sustenance for this contention was sought to be derived from the decision of this Court in Veerabhadrappa Sangappa v. Sakhalchand, 37 Mys LJ 129, in which it was pointed out that for the purpose of obtaining the cancellation of a sale held by a Collector to whom the execution of the decree has been entrusted under Section 68 of the Code of Civil Procedure on the ground of an irregularity in the conduct of the sale by the Collector, the application should be presented to the Collector and not to the executing Court which transferred the decree to him.
The question is whether on that principle it would be possible to hold that an application like the one presented by the judgment-debtor in this case under Rule 89 of Order XXI of the Code of Civil Procedure should have been made only to the Collector and not to the court.
7. Rule 89 of Order XXI of the Code of Civil Procedure reads:--