G.K. Misra, J.
1. In S.C. Suit No. 14 of 1954 there was an ex parte decree against defendants 1 and 2. The decree was put into execution and the disputed property was sold for Rs. 240/- on 16-1-68. Defendant No. 2 filed an appeal before the District Judge contending that the disputed property was not liable to sale as it belonged to him and he was not personally liable under the decree. On 12-2-68 defendant No. 2 claims to have filed an application under Order 21, Rule 89 C. P. C. for setting aside the sale and to have filed a chalan for depositing the money. On that very day an order for interim stay of further proceeding in Execution Case No. 129 of 1966, in which the disputed property had been sold, was passed by the District Judge.
On 13-2-68 the executing court received intimation of the order of stay. On 17-10-68 Misc. Appeal No. 51 of 1968 was dismissed by the District Judge. On 22-10-68, judgment-debtor No. 2 (petitioner) filed an application intimating the executing court that the appeal had been dismissed and as the chalan had already been filed the required money may be permitted to be deposited.
The executing court kept this matter pending till 26-10-68. On 31-10-68 the executing court received intimation of the result of the appeal which amounted to vacating the stay order. On 8-11-68 the prayer for depositing under Order 21, Rule 89 C. P. C. was rejected. Against this order, the Civil Revision has been filed. On 6-12-68 a stay order was passed by this Court subject to the condition that the decretal dues with costs would be deposited. The same was complied with on 11-2-68. The learned executing court rejected the application for depositing the money on the ground that the application dated 12-2-68 was a conditional one and as Order 21. Rule 89 C. P. C. did not permit conditional deposit, the application was not maintainable.
2. Mr. Mohapatra contends that a perusal of the application dated 12-2-68 would dearly show that the deposit was not conditional. Mr. Mukherjee, on the other hand, contends that on 12-2-68 the petitioner did not tender any chalan, and even if he did so, it was not filled up properly and as such it was not a valid tender.
3. The first question for consideration is whether the chalan filed by defendant No. 2, which was used for depositing the money, directed under the stay order passed by the High Court, had been filed on 12-2-68 with the object of depositing the money under Order 21, Rule 89 C. P. C. The order sheet of that day does not contain any statement that such a chalan was filed. The chalan however bears the date '12-2-68'. The application dated 22-10-68 contains a clear recital that a chalan had been filed earlier by defendant No. 2, There is no other chalan in the record excepting one bearing the date 12-2-68. Moreover the decree-holders did not raise any objection in the court below calling for a finding from the executing court that no chalan was filed on 12-2-68. On the aforesaid consideration. I am inclined to hold that such an objection that no chalan was filed on 12-2-68 cannot be allowed to be agitated for the first time in this Court, and even if such a contention is raised one has to accept the position that it was filed on 12-2-68 in view of the recital in the application dated 22-10-68.
4. The next question for consideration is whether the application dated 12-2-68 is a conditional one. Mr. Mukherji filed a copy of that application. The relevant recital of that application may be extracted. It says:
'A stay application has been filed before the District Judge for giving a direction that the decretal and other dues are to be kept in deposit and the sale should not be confirmed during the pendency of the appeal. On this statement of fact there was a prayer that a direction be given that there should be no confirmation of sale and that the decretal and other dues should be kept in deposit.'
The question for consideration is whether these facts make the application a conditional one. In my view they do not Law is well settled that if the judgment-debtor makes a prayer that the amount to be deposited under Order 21, Rule 89 C. P. C. is not to be withdrawn by the auction purchaser or the decree-holder, then the deposit is a conditional one and would not satisfy the requirements of Order 21, Rule 89 C. P. C. and the sale would not be set aside. If, on the other hand, the judgment-debtor in the application makes certain statements of fact which do not prevent the withdrawal of the money either by the decree-holder or by the auction purchaser, then those statements of facts are merely collateral and do not impose a condition.
The statements made in the application dated 12-2-68 are not conditional, judged by the aforesaid test. All that the judgment-debtor stated in the application was that a prayer had been made to certain effect for stay before the District Judge. That was a statement of fact which can hardly be denied, and if such a stay was granted by the District Judge, obviously the amount must be kept in deposit and the confirmation of sale would be stayed. If the stay is not granted by the District Judge, the amount in deposit would be withdrawn by the decree-holder fauction purchaser). No independent prayer was made to the executing court that the said amount should not be paid to the decree-holder. The view taken by the learned Judge that the application was a conditional one is not correct, and his judgment based on this ground cannot be supported.
5. The next question for consideration is whether the judgment-debtor tendered the money as required under Order 21, Rule 89 C. P. C. The application accompanying the chalan is clear on the point. The very day the chalan was filed the stay order was received from' the appellate court. Acting upon the stay order, the executing court did not move its little finger in any manner and the case was adjourned from day to day until the stay was vacated. The executing court itself understood the position that the tender was proper, but it could not be accepted as it was conditional.
Whether the chalan was filed before the court or before the chief ministerial officer, the question is irrelevant in such a case. If the chalan was filed before the court it was the duty of the court to immediately pass it on to its own sheristadar who is the chief ministerial officer entitled to receive the chalan. Facts are patently clear that when the stay order was received, the executing court did not act upon the chalan one way or the other. If the chalan was not properly filled up, it was open to the court to return it and direct the petitioner to file a properly filled up chalan. It was also open to the court to accept a chalan not properly filled up and to fill it up after having reference to the records. If the court had discharged its duty in returning the chalan and the chalan was not filed thereafter within time, the parties are to be blamed. If however the court becomes inactive in respect of the chalan not properly filled up, then it is the laches of the court for which the party cannot suffer. I am therefore clearly of opinion that there was a valid tender within the period of limitation, and if the court had given a direction for depositing the money the amount could have been deposited.
6. In the result, the impugned orderis set aside, the Civil Revision is allowed and the executing court is directed toallow defendant No. 2 to deposit themoney by fixing a certain date. If themoney is deposited, the sale must beset aside. Defendant No. 2 has deposited some amount in accordance with thedirection of this Court on 12-12-68. Hewould be permitted to adjust that amountwhile being called upon to make furtherdeposits. The decree-holder would be entitled to withdraw the amount. In thecircumstances, parties to bear their owncosts throughout.