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Janki Pershad Vs. B. Lekhraj and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All510
AppellantJanki Pershad
RespondentB. Lekhraj and ors.
Cases ReferredNanhelal v. Umrao. Singh
Excerpt:
- - the learned judge has again repeated his finding and has held that as the decree-holder received within 30 days the amount specified in the proclamation of sale the application was good......allegation that on that date he had paid the amount specified in the proclamation of sale to the decree-holder, and he deposited in court an amount equal to 5 per cent of the purchase money. the learned munsif held that a satisfaction or adjustment of the decree out of court was insufficient and accordingly dismissed the application. on appeal the! learned judge has pointed out that the ruling of their lordships of the privy council in the case of nanhelal v. umrao. singh , laying down that a satisfaction or adjustment of the decree between the decree-holder and the judgment-debtor subsequent to the sale is of no effect and cannot prejudice the rights of the auction-purchaser, did not apply to the facts of this case because in this case the judgment-debtor paid to the decree-holder,.....
Judgment:
ORDER

Sulaiman, C.J.

1. This is an application in revision by an auction-purchaser from an appellate order setting aside a sale under Order 21, Rule 89, C.P.C. The property was sold on 23rd June 1931, and an application under Order 21, Rule 89 was filed on 22nd July 1931. It contained the allegation that on that date he had paid the amount specified in the proclamation of sale to the decree-holder, and he deposited in Court an amount equal to 5 per cent of the purchase money. The learned Munsif held that a satisfaction or adjustment of the decree out of Court was insufficient and accordingly dismissed the application. On appeal the! learned Judge has pointed out that the ruling of their Lordships of the Privy Council in the case of Nanhelal v. Umrao. Singh , laying down that a satisfaction or adjustment of the decree between the decree-holder and the judgment-debtor subsequent to the sale is of no effect and cannot prejudice the rights of the auction-purchaser, did not apply to the facts of this case because in this case the judgment-debtor paid to the decree-holder, within thirty days from the date of sale, the amount specified in the proclamation of sale. The learned Judge has again repeated his finding and has held that as the decree-holder received within 30 days the amount specified in the proclamation of sale the application was good.

2. It is quite clear that the learned Judge meant to record a definite finding that there was not merely an adjustment or compromise of the decree out of Court between the decree-]; holder and judgment-debtor, but that, there was an actual payment of the amount specified in the proclamation of sale by the judgment-debtor to the decree-holder. It may be that this finding is based merely on the admission of the decree-holder but no objection is taken in the grounds of revision that there was no legal evidence to support the finding. I must therefore proceed on the assumption that the judgment-debtor paid the amount specified in the proclamation of sale to the decree-holder within thirty days of the sale and deposited the amount required for payment to the auction purchaser. Order 21, Rule 89, Sub-rule (i)(b) requires the judgment-debtor

to deposit in Court for payment to the decree-holder the amount specified in the proclamation of sale less any amount which' may, since the date of such proclamation of sale, have been received by the decree-holder.

3. This rule therefore entitles the judgment-debtor to deduct the amount which has already been received by the decree-holder after the date of the proclamation. The rule does not say received by the decree-holder up to the date of the sale. I am, therefore unable to put any such restriction on the scope of the rule. Obviously, if the amount has been actually received by the decree-holder within thirty days, the judgment-debtor need not deposit the amount in Court over again. The question, whether the amount has been actually received by the decree-holder, is one of fact. Obviously a mere compromise or admission of the decree-holder would not be sufficient. It would be incumbent on the judgment-debtor to satisfy the Court that the amount not deposited in Court had been actually received by the decree-holder within the time fixed. The case decided by their Lordships of the Privy Council is certainly distinguishable. In that case the application for the setting aside of the sale was one under Order 21, Rule 90 and not under Order 21, Rule 89. It was long after the expiry of the 30 days that another application was made on the ground that there had been an adjustment between the decree-holder and judgment-debtor subsequent to the expiry of 30 days from the date of the sale. Their Lordships accordingly pointed out that such an adjustment was of no avail and could not 'prejudice the auction-purchaser. In the present case, on the finding of the lower appellate Court, the amount was actually received by the decree-holder from the judgment-debtor himself before the expiry of the period of 30 days. It seems to me that there was no defect in the application. In any case, even if the view taken by the lower appellate Court were wrong in point of law it would not be possible to interfere in revision under Section 115, C.P.C. The lower appellate Court had jurisdiction to hear the appeal and even to decide it wrongly. The application is dismissed with costs.


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