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Mannu Naik and anr. Vs. Mathura Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All155
AppellantMannu Naik and anr.
RespondentMathura Prasad and ors.
Excerpt:
- - the learned judges do not seem to have endorsed the view of the court below that the case could be disposed of merely on equitable grounds. it seems to us that the decision is based mainly on the ground that the decree-holder had withdrawn the money and that the decree had been fully satisfied in that way......no applications for the setting aside of those sales were ever made it must be taken that the decree-holders had received the balance of the amount and it was therefore open to the judgment-debtors to have the sale of this particular item set aside on payment of its price plus the penalty.2. there is no doubt that when properties are sold for separate prices and in favour of different purchasers, there are so many different sales and a judgment-debtor may apply to have only one of the sales set aside. but order 21, rule 89, prescribes that he must deposit in court a sufficient amount not only for payment to the purchaser a sum equal to 5 per cent of the purchase-money but also for payment to the decree-holder the amount specified in the proclamation of sale as that for the recovery.....
Judgment:

Sulaiman, C.J.

1. This is an appeal from an order disallowing an application under Order 21, Rule 89, for the setting aside of a sale. It appears that in execution of a mortgage-decree 12 items of properties, mortgaged were sold on the same date, namely, 24th June 1931, in 12 separate lots and they fetched different prices, which were noted. The auction-purchasers also were different. On 21st July 1931 the mortgagees from the judgment-debtors of one of the items filed an application under Order 21, Rule 89 for the setting aside of the sale of the item which had been sold for Rs. 5,500. They deposited the sum of Rs. 5,500 plus the penalty of 5 per cent but did not deposit the whole of the decretal amount for which the properties had been put up for sale. The learned Subordinate Judge confirmed all the sales in September 1931. He disallowed the application of the mortgagees on the ground that it was not open to them to apply under that rule to have the sale set aside of some only of the lots. It is contended before us in appeal that inasmuch as the sales of the other lots were confirmed and, in fact, no applications for the setting aside of those sales were ever made it must be taken that the decree-holders had received the balance of the amount and it was therefore open to the judgment-debtors to have the sale of this particular item set aside on payment of its price plus the penalty.

2. There is no doubt that when properties are sold for separate prices and in favour of different purchasers, there are so many different sales and a judgment-debtor may apply to have only one of the sales set aside. But Order 21, Rule 89, prescribes that he must deposit in Court a sufficient amount not only for payment to the purchaser a sum equal to 5 per cent of the purchase-money but also 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 such proclamation of sale, have been received by the decree-holder. This rule gives an indulgence to the judgment-debtor and allows him a further period of 30 days to pay the amount together with the penalty. But in order to avail himself of the provisions of this rule he must bring himself strictly within its purview and must fulfil all the conditions required by it. It is clear the 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 the sale. It is obvious that the sale of the other items cannot be confirmed before the expiry of the prescribed 30 days. So long as the sale of the other items has not been confirmed the decree-holder has not even the right to apply to the Court for the payment of the money to him. It is therefore impossible to hold that the decree-holder can be deemed to have received the amount deposited by the auction-purchasers before the sale has been actually confirmed. As a matter of fact, the view taken in some of the other High Courts is that the word 'received' must be taken in its literal sense and it is the actual receipt of money by the decree-holder and not the deposit of any amount by auction-purchasers in Court which is contemplated. But in any case it is clear that so long as the decree-holder has not the right to take the money out of Court before confirmation it cannot be said that the money has been received by him merely because it has been deposited to his credit.

3. In this view of the matter it seems, almost impossible for a judgment-debtor to take advantage of the fact that other sales have taken place on the same date and that auction-purchasers have deposited amounts, and to claim credit for those sums and deduct the same from the amount which he offers to pay. He has to pay the amount in Court within thirty days whereas the confirmation of the sale of the other items cannot take place within that time. If the law were otherwise a judgment-debtor would be able to pick and choose and apply for the setting aside of the sale of only one of the several items which may have been sold cheap, on payment of its sale price and penalty, claiming credit for the payment of the sale price of the other items. The learned advocate for the appellants strongly relies on the case of Panna Lal v. Bhola Nath : AIR1930All843 . Apparently in that case also several items were sold on one and the same date and the judgment-debtor applied to have the sale of one item set aside on payment of the purchase-money and penalty and claimed reduction on account of the prices paid by the auction-purchaser of the other items. The learned Subordinate Judge had referred to Calcutta and Madras cases, Kripa Nath Pal v. Ram Lakshmi Dasya (1897) 1 CWN 703 and Obla K. Subbavyar v. Thoppai Muthayyan AIR 1922 Mad 54 which relied on an earlier Madras case but thought that the facts of those cases were not exactly the same, and that in the absence of any authority of this Court he was entitled to take an equitable view of the matter. The learned Judges of this Court in disposing of the revision did not dissent from the view expressed in the cases quoted above and presumably considered that the case before them was distinguishable. The decision appears to have been based on a statement made on behalf of the applicant before the Bench that the decree-holder had withdrawn the money fetched at the auction sale in full satisfaction of his decree, which statement the learned advocate for the opposite party was not in a position to controvert. The learned Judges do not seem to have endorsed the view of the Court below that the case could be disposed of merely on equitable grounds. The learned advocate for the respondents before us contends that it was not possible for a decree-holder to have withdrawn the money in that case before the confirmation of the sale and that the assertion must have implied that the amount was withdrawn some time before the revision came for hearing. It seems to us that the decision is based mainly on the ground that the decree-holder had withdrawn the money and that the decree had been fully satisfied in that way. It was apparently in this view of the matter that the learned Judges thought that the amount had been received by the decree-holder. 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, Rule 89 only 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. We accordingly dismiss the appeal with costs.


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