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Kurcha Sanyasinaidu Vs. Chode Suryarao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1547 of 1963
Judge
Reported inAIR1965AP330
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 89
AppellantKurcha Sanyasinaidu
RespondentChode Suryarao and ors.
Appellant AdvocateE.V. Bhagiratha Rao, Adv.
Respondent AdvocateN. Bapiraju and ;N.V. Suryanarayanamurthy, Advs.
Excerpt:
.....on the main ground that the applicant not deposited the entire decretal amount as shown in the sale proclamation but only a portion of it. ' it will be seen that on a plain reading of the rule, a person making an application to have the sale set aside, has to deposit the entire amount specified in the proclamation of sale for the recovery of which the sale was ordered deducting the amounts received by the decree-holder subsequent to the date of the proclamation ;and the requirement of the rule is not satisfied if the applicant deposits only an amount equal to that fetched by the sale of a particular item in which he is interested. we are clearly of the view that this contention is based on a misapprehension of what was decided in that case, and there is really no conflict between..........on the main ground that the applicant not deposited the entire decretal amount as shown in the sale proclamation but only a portion of it. the district munsif upheld the objection and dismissed the application. an appeal against that order taken to the district court, visakhapatnam, was also dismissed. hence this revision petition. (4) it was contended on behalf of the petitioner that although the sale proclamation had specified an amount of rs. 15,541-31 np. as that for the recovery of which the sale was ordered, yet, as the property of the judgment-debtor was sold in several lots and the particular lot viz. , lot no. 1, in which the petitioner was interested, was sold for a sum of rs. 1500, he was entitled to have the sale of that lot set aside on depositing the amount actually.....
Judgment:

Basi Reddy, J.

(1) This case has been referred to a Division Bench because of a seeming conflict between a decision of the Madras High Court in Chinnappa Tharakan v. Ittichi Amma, AIR 1926 Mad 765 : 50 Mad LJ 580 and a recent decision of this Court in Veeraraghavayya v. Venkata Subbaraya Sastri, : AIR1964AP94 as to the true scope of Rule 89 of Order XXI of the Code of Civil Procedure.

(2) The relevant facts giving rise to this revision petition are as follows : The 1st respondent obtained a money decree in O. S. No. 146 of 1954 on the file of the Subordinate Judge's Court, Kakinada, against the 2nd respondent. In belonging to the judgment-debtor were put to auction on 11-6-1962, but only one item (Lot No. 1) was sold for a sum of Rs. 1500. The successful bidder was the 4th respondent. It is important to note that the proclamation of sale specified that an amount of Rs. 15,733-87 nP. was due under the decree and the property of the judgment-debtor was being brought to sale for the recovery of that amount.

(3) Subsequently the revision-petitioner, claiming to have derived title from the judgment-debtor to the item which was sold in the court-auction, filed an application before the District Munsif of Chodavaram under Order XXI, Rule 89 Civil Procedure Code, to have the sale set aside, and along with the application, he deposited in Court a sum of Rs. 1500, representing the amount for which that item of property had been sold, in addition to the sum equal to 5 per cent of the purchase money. That application was opposed by the decree-holder as well as the auction-purchaser on the main ground that the applicant not deposited the entire decretal amount as shown in the sale proclamation but only a portion of it. The District Munsif upheld the objection and dismissed the application. An appeal against that order taken to the District Court, Visakhapatnam, was also dismissed. Hence this revision petition.

(4) It was contended on behalf of the petitioner that although the sale proclamation had specified an amount of Rs. 15,541-31 nP. as that for the recovery of which the sale was ordered, yet, as the property of the judgment-debtor was sold in several lots and the particular lot viz. , Lot No. 1, in which the petitioner was interested, was sold for a sum of Rs. 1500, he was entitled to have the sale of that lot set aside on depositing the amount actually realised by its sale.

(5) In our opinion this contention is untenable as it is opposed to the express terms of Rule 89. That Rule, so far as it is material for the present purpose, runs as follows : -

'89 (1) Where immovable property has been sold in execution of a decree, the judgment-debtor, or any person deriving title from the judgment-debtor, or any person holding an interest in the property may apply to have the sale set aside on his depositing in Court

(a) for payment to the purchaser, a sum equal to 5 per cent of the purchase money, and

(b) 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 the proclamation of sale, have been received by the decree-holder.'

It will be seen that on a plain reading of the Rule, a person making an application to have the sale set aside, has to deposit the entire amount specified in the proclamation of sale for the recovery of which the sale was ordered deducting the amounts received by the decree-holder subsequent to the date of the proclamation ; and the requirement of the Rule is not satisfied if the applicant deposits only an amount equal to that fetched by the sale of a particular item in which he is interested.

(6) This view accords with the judgment of a Division Bench of this Court (consisting of Chandra Reddy, C. J. and Narasimham, J.) in : AIR1964AP94 .

(7) Learned Advocate for the petitioner has, however, drawn our attention to a decision of a Division Bench of the Madras High Court in AIR 1926 Mad 765 : 50 Mad LJ 580, which according to him, supports his contention. We are clearly of the view that this contention is based on a misapprehension of what was decided in that case, and there is really no conflict between that decision and the decision of this Court referred to above.

(8) The facts in the Madras case were the following : A mortgage decree was passed against the karnavan and anandravans of Malabar tarwad. It was found that only a portion of the mortgage amount was binding on the tarwad and the rest was payable by the karnavan alone. The decree contained a direction that items 1 to 21 of the mortgage property, which were tarwad properties, would be liable to the extent of the debt binding on the tarwad viz. , a sum of Rs. 3885-11-3 and subsequent interest thereon, while for the balance of the decree, the karnavan's private properties viz. , items 22 to 29 were made liable. The preamble of the sale proclamation mentioned the full column specifically mentioned that items 1 to 21 were being sold for only a part of the decretal amount viz. , Rs. 3885-11-3 and interest, as directed by that decree.

After the sale, the anandravans deposited Rs. 5300/- in Court representing the amount for which items 1 to 21 had been directed to be sold together with 5 per cent of the purchase money for payment to the purchaser, and applied under Order XXI, Rule 89 Civil Procedure Code to have the sale of those items set aside. The auction-purchaser opposed the application on the ground that the sale could be set aside only on deposit of the full amount of the decree. A Division Bench of the Madras High Court (consisting of Devadoss and Waller JJ. ) held that the anandravans were entitled to have the sale of items 1 to 21 set aside on depositing the amount for the realisation of which those items had been directed to be sold. In repelling the contention on behalf of the auction-purchaser that inasmuch as the decree was for Rs. 11,000 odd, the full amount of the decree should have been deposited before the sale could be set aside under Rule 89, the learned Judges observed :

'From the judgment and decree it is clear that the liability of the tarwad was only to the extent of Rs. 3,309-9-2 and subsequent interest and costs. The argument of the appellant is that in the proclamation of sale the amount of Rs. 11,000 odd was mentioned and therefore that should be taken as the amount of the decree for the satisfaction of which the property was sold. In the preamble of the proclamation the amount of Rs. 11,000 odd was mentioned, but in the remarks column it was specifically mentioned that items 1 to 21 should be sold for the amount of Rs. 3,885-11-3 and interest as directed by the decree. When there is a specific mention in the proclamation of sale that a certain amount only is realisable from the sale of certain items, it cannot be reasonably contended that in order to redeem them the whole of the decree amount should be paid. Supposing in this case the respondents paid the amount mentioned in the remarks column before the sale, could the mortgage decree-holder have insisted upon their sale for the satisfaction of his decree The burden on items 1 to 21 was specifically mentioned in the proclamation of sale and any one interested in redeeming the items could not be asked to pay anything more than the amount of the burden imposed upon them. The wording of cl. (b) of R. 89 (1) of O. 21 is : -

'The amount specified in the proclamation of sale as that for the recovery of which the sale was ordered.

This expression could only mean the amount mentioned in the proclamation of sale as that which is to be realised by the sale of the property. The amount mentioned in the preamble cannot be held to control the clear statement in the remarks column that items 1 to 21 should be sold only for so much.'

After referring and distinguishing some of the cases which were cited before them, the learned Judges concluded : -

'We are clearly of opinion that in this case the proclamation of sale specified the amount due on items 1 to 21 as that for the recovery of which their sale was ordered, and the respondents therefore were not bound to pay the whole of the decree amount but only that for which the items were sold together with 5 per cent in order to get the sale set aside under R. 89 of O. 21.'

(9) It is evident from the above passages that in that case the amount mentioned in the proclamation of sale for the recovery of which items 1 to 21 were ordered to be sold, was only a portion of the decretal amount and not the whole of it.

(10) In the present case, however, the position is entirely different. In the proclamation of sale it was specified that the property of the judgment-debtor was being brought to sale for the recovery of the entire decretal amount. It is true, as pointed out by the learned advocate for the petitioner, that in the instant case the upset price was fixed in respect of each lot and further, only one lot out of five lots was actually sold at the auction. But, in our opinion, neither the fact that only one lot was sold nor the fact that an upset price was fixed in respect of each lot, would make any difference to the applicability of the Rule in all its rigour.

(11) As was pointed out by the Judicial Committee of the Privy Council in Seth Nanhelal v. Umrao Singh 60 Mad L. J. 423 at p. 429 : (AIR 1931 P. C. 33 at p. 35), when once a sale has been effected, a third-party's interest intervenes, and the only means by which the judgment-debtor or any other person with an interest in the property, can get rid of a sale, which has been duly carried out, are those embodied in R. 89, viz. , by depositing in Court the amount for the recovery of which the property was sold, together with 5 per cent on the purchase money, which goes to the purchaser as statutory compensation, and this remedy can only be pursued within thirty days of the sale, as prescribed by Article 166, Sch. I of the Limitation Act.

(12) It follows from the foregoing discussion that there are no merits in this revision petition. It is accordingly dismissed with costs of the contesting respondents.

(13) Petition dismissed.


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