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Mohammad Taqi Khan and anr. Vs. Raja Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1943All267
AppellantMohammad Taqi Khan and anr.
RespondentRaja Ram and anr.
Excerpt:
.....under the decree. 725 that where a decree had been satisfied and was not a subsisting decree and in order to set aside the sale made under such a decree a deposit under order 21, rule 89 was made, that such a deposit could be recovered under section 72, contract act, by an action against the decree-holders. the ordinary rule is that in the absence of special circumstances court rate of interest should be allowed and, in our opinion, no special circumstances were proved in this case and the courts below were clearly in error in allowing the judgment-debtors interest at 6 per cent......khatoon. in order to recover the balance of the decree, an application for execution was made by decree-holders on 25th august 1931 and in the course of execution a sale of immovable property of the judgment-debtors was notified. on 20th may 1932 mohammad taqi khan and mt. rahmat khatoon raised an objection to the sale on the ground that the decree was barred by limitation. nevertheless before this objection could be considered on its merits, on 27th may 1932 a public sale of the judgment-debtors' property took place for rs. 2900 and the property was purchased by the decree-holders. on 25th june 1932 mohammad taqi khan and mt. rahmat khatoon deposited, under order 21, rule 89, civil p. c. a sum of rs. 3138-10-0 for payment to the decree-holders.' on 8th december 1932 the execution.....
Judgment:

Dar, J.

1. This is an appeal under Section 10, Letters Patent, against a judgment of a learned Judge of this Court, dated 25th August 1941 by which he reversed concurrent decrees of two Courts below in proceedings relating to restitution under Section 144, Civil P. C. Mul Chand, father of the respondents Raja Ram, Chiranji Lal and Mulchand's brother, Hoti Ram obtained a mortgage decree in Suit No. 157 of 1923 from the Court of the Civil Judge of Parrukhabad against the appellants, Mohammad Taqi Khan and Mt. Rahmat Khatoon who are husband and wife and against eight other persons for a sum of Rs. 5538-211. Part of this decree to the extent of Rs. 3190 was satisfied by some judgment-debtors other than Mohammad Taqi Khan and Mt. Rahmat Khatoon. In order to recover the balance of the decree, an application for execution was made by decree-holders on 25th August 1931 and in the course of execution a sale of immovable property of the judgment-debtors was notified. On 20th May 1932 Mohammad Taqi Khan and Mt. Rahmat Khatoon raised an objection to the sale on the ground that the decree was barred by limitation. Nevertheless before this objection could be considered on its merits, on 27th May 1932 a public sale of the judgment-debtors' property took place for Rs. 2900 and the property was purchased by the decree-holders. On 25th June 1932 Mohammad Taqi Khan and Mt. Rahmat Khatoon deposited, under Order 21, Rule 89, Civil P. C. a sum of Rs. 3138-10-0 for payment to the decree-holders.' On 8th December 1932 the execution Court dismissed the objection of the judgment-debtors holding that the decree was not barred by limitation and on the same date it set aside the sale on account of the money due under the decree having been deposited by the judgment-debtors under Order 21, Rule 89, Civil P. C. On 10th December 1932 Mohammad Taqi Khan and Mt. Rahmat Khatoon made an application to the execution Court not to pay the sum deposited to the decree-holders and to keep it in deposit till the controversy with regard to the limitation of the decree had been finally decided between the parties but the Court did not accede to this request and on 23rd December 1932, the deposit was withdrawn by the decree-holders. The judgment-debtors, Mohammad Taqi Khan and Mt. Rahmat Khatoon, preferred an appeal against the judgment of the execution Court by which the decree was held to be within time and by a judgment dated 26th November 1936 of this Court their appeal was finally allowed and it was held that the mortgage decree was time-barred against Mohammad Taqi Khan and Mt. Rahmat Khatoon.

2. On 11th August 1939 an application was made by Mohammad Taqi Khan and Mt. Rahmat Khatoon under Section 144, Civil P. C, against the decree-holders for recovery of the sum of Rs. 3138-10-0 which they had deposited on 25th June 1932, with interest at six per cent. per annum on that sum. The execution Court by its judgment dated 2nd September 1939 decreed the claim for the principal amount and the interest claimed. The decree-holders who were thus made liable to refund made an appeal to the District Judge of Farrukhabad and the learned Judge found by his judgment dated 5th January 1940 that as Mohammad Taqi Khan and Mt. Rahmat Khatoon were two out of the ten judgment-debtors liable under the decree whose property was sold in circumstances mentioned above and as the decree was not time-barred against other judgment-debtors, Mohammad Taqi Khan and Mt. Rahmat Khatoon were only entitled to re. cover the proportionate amount of the deposit which had been made; the proportionate amount to be determined with reference to their share in the property sold and on this finding, he modified the decree of the execution Court and granted to Mohammad Taqi Khan and Mt. Rahmat Khatoon a decree for recovery of the proportionate amount of the principal sum, Rs. 3138-10-0 and its interest, Rs. 1341. The decree-holders Raja Ram and Chiranji Lal made a second appeal to this Court and a learned Judge of this Court holding that the application for restitution was not maintainable under Section 144, Civil P. C, allowed the appeal, set aside the decrees of both the Courts below and dismissed the application for restitution. Against this judgment of a learned Judge of this Court this Letters Patent appeal has been filed.

3. The first question which falls to be considered in this case is whether in the circumstances mentioned above, Mohammad Taqi Khan and Mt. Rahmat Khatoon were entitled to seek restitution under Section 144, Civil P. C. It is contended on behalf of the decree-holders that the right of restitution, under Section 144, Civil P. C, only arises in those cases where a decree is reversed or varied by a superior Court and it goes no further than this that it allows the Court to grant relief with regard to those matters which came into existence as a consequence of the decree which had been varied or reversed in appeal. In the case before us the contention of the decree-holders is that the decree which was varied by the Court of appeal was the decree of the lower Court holding that the decree-holders' decree was not barred by limitation and this decree was made on 8th December 1932, and if anything had been done as a consequence of this decree, the judgment-debtors would have been entitled to restitution, but nothing was done in pursuance of this decree. The judgment-debtors in this case are seeking restitution with regard to two matters, one of which is the auction sale which took place and the other is the deposit which was made for setting aside the sale and both these matters took place on 20th May 1932, and on 25th June 1932, respectively, i.e., six months before the decree was made which had been reversed in appeal. The decree- holders further contend that the payment which was made on 25th June 1932, and which was sought to be refunded in this case was not made in execution of the decree at all but was made under a specific statutory provision contained in Order 21. Rule 89, Civil P. C., for avoidance of sales and such a payment cannot be taken as money paid in execution of the decree which had been reversed.

4. It is not disputed that if in execution of a time-barred decree while the controversy about its subsistence is going on any money is deposited by the judgment-debtor under protest or if in execution of such decree a sale takes place of the property of the judgment -debtor, which is purchased by the decree-holder then on the final determination of the question of limitation in favour of the judgment-debtor he would be entitled to refund of the money deposited or to recover the property as the case may be against the decree-holder and this restitution is permissible under Section 144, Civil P. C., but it is contended that these considerations have no application to a case where the sale of the judgment-debtor's property takes place at a time when an objection about the subsistence of the decree is pending and the judgment-debtor voluntarily deposits money under Order 21, Rule 89 to have the sale set aside. It seems to us that the real question in the case is whether the payment was made in execution of a decree which was taken or assumed to be subsisting at the time when the payment was made but which later on in appeal was held to be barred by limitation and not subsisting. Before the sale was made an objection was raised by the judgment-debtors that the decree was not subsisting and the sale was not permissible of the judgment-debtors' share of the property. The Court without deciding the objection proceeded with the sale and it must be taken that the Court impliedly held that the decree was subsisting when it allowed the sale to take place. Later on, it expressly decided the question of limitation and expressly held that the decree was not barred by time. When this view of the execution Court was reversed by the Court of appeal it followed that not only the main judgment by which the decree was held to be within time was vacated but all prior and subsequent but dependent and incidental orders also were vacated and the judgment-debtors became entitled to restitution for wrongs done to them not only under the order which was vacated in appeal but also under prior and incidental orders which were covered by the judgment in appeal.

5. But it is contended that this may have been the result if the judgment-debtors had deposited the amount in Court prior to the sale or even if they had allowed the property to be sold and the property had been purchased by the decree-holders but this result cannot be reached in a case where the judgment-debtors allow a sale to take place and then get the sale set aside by making a deposit under Order 21, Rule 89, Civil P. C, because Order 21, Rule 89, Civil P. C, creates a special remedy and a special procedure and the person who makes a deposit under, Order 21, Rule 89 has got to do it unconditionally and without any protest and his payment in the eye of law is of a voluntary nature and he can never recover back that payment from the decree-holder. There is undoubted conflict of judicial authority upon the interpretation of Order 21, Rule 89, Civil P. C, and on the question whether the deposit made by a person to set aside the sale is a voluntary one or under coercion. Most of this conflict has arisen in connection with suits brought by third parties, to recover money paid by them to set aside the sales and not in connection with proceedings under Section 144, Civil P. C. and the main controversy has centred round the question whether the payments made by third parties to set aside sales which could not have affected their rights and interests should be regarded as a voluntary payment or should be regarded as payments made under coercion for which they are entitled to raise an action under Section 72, Contract Act. Some of these cases turned upon their own facts and in some cases equitable considerations arose that the decree-holders by reason of the deposits made by third parties were prevented from executing their decrees against their judgment-debtors.

6. In Narayan Vasudevacharya v. Amgauda Malagauda ('21) 8 A.I.R. 1921 Bom. 169 which is the leading case on the subject, a third person's property was sold in execution of a valid and subsisting decree and this third person having made a deposit and having got the sale set aside, brought a suit for refund of the deposit and his claim was held barred under Order 21, Rule 89 Civil P. C. The same view was followed in Raghu Ram Pandey v. Deokali Pande ('28) 15 A.I.R. 1928 Pat. 193, in Kummakutty v. Neelakandan Nambudri ('30) 17 A. I. R. 1930 Mad. 921 and in Krishna Ayyar v. Arunachalam Chettiar : AIR1935Mad842 . On the other hand in Kotla Satyam v. Thammana Perraju : AIR1931Mad753 and in Yenkatadri Appa Rao v. Venkata Kutumbarao ('41) 28 A. I. R. 1941 Mad. 635 the deposit made under Order 21, Rule 89 was not regarded as voluntary and its refund was allowed.

7. These cases were all cases in which deposits were made by third parties who were not bound to make a deposit and whose rights should have remained unaffected by the sale and these were all cases in which an action was raised for recovery of money paid and as an action could only lie for recovery of money which was taken away by the decree-holders without any promise to pay under some statutory right, the main controversy which arose in these cases was whether Section 72 which gave a statutory right to recover payment made under coercion applied to a payment made by a third party under Order 21, Rule 89, Civil P. C. These were again all cases in which the decrees were good decrees against the judgment-debtors under which the property was sold and the only difficulty was that a third party's property had been sold which could not be sold under the decree. On the other hand, it was held in Pappu Reddiar v. S. A. Pichu Ayyar ('38) 25 A. I. R. 1938 Mad. 493 and in Raman Adiyoty v. Kanan Nanabiar ('40) 27 A.I.R. 1940 Mad. 725 that where a decree had been satisfied and was not a subsisting decree and in order to set aside the sale made under such a decree a deposit under Order 21, Rule 89 was made, that such a deposit could be recovered under Section 72, Contract Act, by an action against the decree-holders. In our opinion, these cases are not directly in point when the question arises in a proceeding under Section 144, Civil P. C, and when the claim for restitution is made by the judgment-debtor against the decree-holder in a case where the decree itself was not subsisting under which sale was made. And apart from authority, we see no reason why a payment made by the judgment-debtors under a time-barred decree to set aside the sale under Order 21, Rule 89 in the circumstances of this ease should not also be regarded as a payment made under coercion within the meaning of Section 72, Contract Act.

8. The decree-holders further contend that if the case is not covered by Section 144, Civil P.C. and restitution has to be made under equitable consideration then the judgment-debtors are not entitled to a refund because the decree for the satisfaction of which the deposit was made was partly subsisting against other judgment, debtors and partly was not subsisting against Mohammad Taqi Khan and Mt. Rahmat Khatoon and if in order to avoid the sale of joint property, Mohammad Taqi Khan and Mt. Rahmat Khatoon made the deposit it was open to the decree-holders to appropriate the payment towards that portion of the decree which was subsisting. It was further contended that although the decree had become barred by time, it only meant that remedy had become barred and the debt was still subsisting and if a voluntary payment had been made to satisfy that debt it could not be recovered back. On behalf of the judgment-debtors it is contended that they are seeking refund only qua their own share of the deposit and qua their own share of the property and if they had deposited any excess amount for the share of other judgment-debtors they may not be able to recover it and they do not seek to recover it but there is no reason why the judgment-debtors should not be allowed to recover the amount of deposit which is applicable to their share. It is further contended that the right of the creditors to appropriate the payment towards any debt and the further question that the remedy of the decree-holders only was barred and not their debt have no application to a ease where the payment has been made under coercion and under protest.

9. It is not necessary to express any opinion upon these questions because in the view which we have taken the case is covered by Section 144, Civil P. C. In other words, when there is a clear statutory provision and the judgment-debtors are entitled to enforce that statutory provision equitable considerations, assuming there be any, do not arise in the case. It follows that the judgment-debtors are entitled to a refund of the proportionate amount of the deposit, the proportion of the recoverable deposit being in proportion of their share of the property as provided for by the decree of the lower appellate Court. There now remains the question of interest that the judgment-debtors are entitled to on the sum which is allowed to them on refund. The ordinary rule is that in the absence of special circumstances court rate of interest should be allowed and, in our opinion, no special circumstances were proved in this case and the Courts below were clearly in error in allowing the judgment-debtors interest at 6 per cent. per annum and the interest which could have been allowed was only 3 per cent. per annum but having regard to the special circumstances of this case we have come to the conclusion that no interest should be allowed. The result is that this appeal is allowed in part, the judgment of the learned Judge of this Court, dated 25th August 1941, is set aside and the decree of the lower appellate Court is restored with this modification that the sum of interest, viz., Rs. 1341 mentioned therein and the future interest mentioned in the decree of the Courts below is disallowed. In other words, the judgment-debtors are given a decree for the proportionate amount of Rs. 3138-10-0 only and, in the circumstances of the case, we further direct the parties to bear their own costs in all the Courts.


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