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Yellamanchili Veera Raghavayya Vs. Madduri Venkata Subbaraya Sastri and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 11 of 1962
Judge
Reported inAIR1964AP94
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 89(1)
AppellantYellamanchili Veera Raghavayya
RespondentMadduri Venkata Subbaraya Sastri and anr.
Appellant AdvocateD. Narsaraju, Adv. General and ;S. Parvatharao, Adv.
Respondent AdvocateM. Krishnarao, Adv. for G. Venkatarama Sastry, Adv.
DispositionAppeal allowed
Excerpt:
.....the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the..........89, sub-rule (b), c. p. c. contemplates the deposit of the whole of the amount mentioned in the sale proclamation less the amount that might have been paid subsequent to the issue ofthe proclamation and not such amount as was realised by the sale of a particular item.8. we feel that this contention is well-founded and has to prevail. order 21, rule 89, c. p.c., in so far it has a bearing on the present enquiry, reads:'(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 is 5 per cent of the purchase money, and (b) for payment to the.....
Judgment:

Chandra Reddy, C.J.

1. This appeal, under Clause 15 of the Letters Patent, is filed by an auction-purchaser against the order of San-jeeva Row Nayudu, J. setting aside that of the District Judge, East Godavari, dismissing a petition filed by the first respondent herein under Order 21, Rule 89, C. P.C.

2. The facts material for this enquiry lie in a brief compass and are not in dispute. In execution of a decree obtained by Jaggayya, the second respondent, against the vendor of the first respondent, several Items of proper-lies belonging to the latter were brought to sale. In the proclamation of sale issued under Order 21, Rule 66. C. p. C. a sum of Rs. 91,514-4-0 was mentioned as the amount due and payable by the Judgment-debtor. At the court-auction, the appellant was the highest bidder and so the bid was knocked down in his favour. As such, he became the auction-purchaser.

3. The first respondent claiming to be interested in item 6 of the properties deposited Rs. 1,350/- representing Ihe sate proceeds of that item, and filed a petition under Order 21, Rule 89, C. P. C. to set aside the sale of that item.

4. The application was resisted by the appellant auction-purchaser on the ground that np relief could be granted to the first respondent under Order 21, Rule 89, C. P. C. as he had not complied strictly with the terms thereof.

5. Admittedly, the deposit made by him in the lower Court was very much less than the amount specified in the proclamalion of sale. The trial Court gave effect to the objection of the auction-purchaser and dismissed the petition.

6. On appeal by the aggrieved first respondent, our learned brother, Sanjeeva Row Nayudu, J. reversed the order of the District Judge in the view that there was compliance with Ihe terms of Order 21, Rule 89, C.P. C. in that the amount deposited was equal to the price realised by the sale of Item 6. In the result, he allowed the appeal and accepted the petition under Order 21, Rule 89, C. P. C. It is this order of the learned Judge that is under appeal now.

7. It is urged by the learned Advocate-General In support of this appeal that Order 21, Rule 89, Sub-rule (b), C. P. C. contemplates the deposit of the whole of the amount mentioned in the sale proclamation less the amount that might have been paid subsequent to the issue ofthe proclamation and not such amount as was realised by the sale of a particular item.

8. We feel that this contention is well-founded and has to prevail. Order 21, Rule 89, C. P.C., In so far it has a bearing on the present enquiry, reads:

'(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 is 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 oidered, less any amount which may, since the date of the proclamation of sale, have been received by the decree-holder :

Provided that where the immovable property sold isliable to discharge a. portion of the decree debt, the payment under Clause (b) of this sub-rule need not exceedsuch amount as under the decree the owner of the property sold is liable to pay.'*****

9. It is manifest from Clause (b) that the applicant under Order 21, Rule 89, C. P. C. is required to deposit the entire amount specified in the proclamation of sale for the recovery of which the sale was to take place deducting the amounts already paid subsequent to the issue of the sale proclamation. There is no warrant for the construction that deposit of the amount equal to that fetched by the sate of particular item would enable the applicant to get relief under that provision of law. Clause (b) is cast in a mandatory form and non-compliance with it would disentitle an applicant to get any relief.

10. This is the view taken by Kuppuswami Aiyar, J. of Madras High Court in Arumughathammal v. Mangoomal Lunida Singh Firm, 1944-2 Mad LJ 124 : (AIR 1944 Mad 565). Sanjeeva Row Nayudu, J., refused to follow this ruling in the view that this decision is not in ccnsonance with the spirit of Order 21, Rule 89, C. P. C. With great respect to the learned Judge, we think that this ruling embodies the correct law and is in consonance with the intendment of that rule. The decisions relied on by him have no analogy here. We are of opinion that the view taken by the trial Court is the correct one and did not call for interference at the hands of the learned Judge.

11. Since the question whether any amounts have been realised by the sale of the other items of properties has not been gone into, this matter is remitted to the trial Court for deciding whether and what amounts were realised by the sale of the other items of properties. If really the balance of the amount payable by the present first respondent after giving credit for any amounts realised by sale of the other items was only Rs. 1,350/- his petition would have to be allowed. Otherwise, it would have to be dismissed.

12. In the result, the appeal is allowed, the orderof Sanjeeva Row Nayudu, J., is set aside and the case isremanded to the trial Court for disposal according to lawand in the light of our observations. There will be noorder as to costs of this appeal.


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