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Luhar Bhimji Govind Vs. Mansukhlal Keshavlal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1355 of 1968
Judge
Reported inAIR1974Guj205
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 89(1)
AppellantLuhar Bhimji Govind
RespondentMansukhlal Keshavlal and ors.
Appellant Advocate S.K. Javeri, Adv.
Respondent Advocate D.U. Shah, Adv.
Cases ReferredIn Amritlal Narsilal v. Sadashiv
Excerpt:
.....stay - such deposit made prior to proclamation of sale - amount not deposited for payment to decree holder - judgment debtor cannot deduct such amount under clause (b) of order 21 rule 89 - setting aside of sale on ground of constructive receipt of such amount by decree holder untenable. - - ' in the instant case the condition referred to in clause (a) is undoubtedly satisfied. there could be other modes of payment and the test is whether the decree was satisfied within the prescribed period of 30 days. ratilal [1968]1scr455 has clearly laid down at page 375 that rule 89 requires that two primary conditions relating to deposit must be fulfilled; the provision is not intended to defeat the claim of the auction-purchaser, unless the decree is simultaneously satisfied. in the..........by the petitioner's advocate on behalf. in that application it was stated that the claim of the decree-holders specified in the sale proclamation for which the property of the judgment-debtor was ordered to be sold, was to the tune of rs. 2,453. it was further averred therein that after the darkhast was filed on 1-1-1968, rs. 500 were paid to the decree-holders and on 5-3-1966, rs. 166-60 ps. were deposited by him in court in civil miscellaneous application no. 4 of 1966 between the parties. after deducting the aforesaid two sums. the amount due to the decree-holders comes to rs. 1786-40 ps; rs. 211-50 ps. are deposited for payment to the purchaser at the rate of 5 per cent of the purchase price and rs. 102-10 ps. are being deposited to meet any other additional liability. the total.....
Judgment:
ORDER

1. This is a Revision Petition filed by the original judgment -debtor against the order passed by the learned District Judge, Junagadh in Civil Miscellaneous Appeal No. 5 of 1968 setting aside the order passed by the learned Civil Judge (Junior Division), Una, below Ex. 41 in the Darkhast No. 170 of 1965(?) setting aside the auction sale under Order 21, Rule 92 (2) of the Civil Procedure Code.

2. The facts giving rise to this Revision Petition briefly stated are as under. Opponents Nos. 2 (a) to 2 (d) are the trustees of the Swaminarayan Temple at Una. They obtained a decree for a sum of Rs. 2,000 with running interest at 4 per cent per annum in regular civil suit No. 257 of 1964 filed in the Court of the Civil Judge (Junior Division), Una against the petitioner. They filed regular Darkhast No. 170 of 1965 for executing that decree and prayed for attachment and sale of the house of the judgment-debtor bearing S. Nos. 53 to 57 and its appurtenant house site bearing No. 51 situated in Bhavsar locality in Una. This property was subject to several mortgages in favour of Kamalshi Mulji of Una. The house was sought to be sold in auction subject to the encumbrances of the aforesaid mortgagee. The property was attached and a sale proclamation was issued by the Executing Court. The property was auctioned in court sale on 4-1-1968. The present opponent No.1 Mansukhlal Keshavlal's highest bid for Rs .4,251 was accepted by the Court. On that very day he deposited one-fourth amount of it, viz. Rs.1063. On 3-2-1968 the application Ex.41 under Order 21,Rule 89 of the Civil Procedure Code was filed by the petitioner's advocate on behalf. In that application it was stated that the claim of the decree-holders specified in the sale proclamation for which the property of the judgment-debtor was ordered to be sold, was to the tune of Rs. 2,453. It was further averred therein that after the Darkhast was filed on 1-1-1968, Rs. 500 were paid to the decree-holders and on 5-3-1966, Rs. 166-60 Ps. were deposited by him in Court in Civil Miscellaneous Application No. 4 of 1966 between the parties. After deducting the aforesaid two sums. The amount due to the decree-holders comes to Rs. 1786-40 Ps; Rs. 211-50 Ps. are deposited for payment to the purchaser at the rate of 5 per cent of the purchase price and Rs. 102-10 Ps. are being deposited to meet any other additional liability. The total amount of deposit thus comes to Rs. 2,100. It was further averred that in case it was found that he was liable to pay or deposit any further amount, he was ready to do so. He prayed that the auction sale of the property in question be set aside under Order 21, Rule 89 of the Civil Procedure Code.

3. The decree-holders by their application Ex. 42 and the auction-purchaser by his application Ex. 48 contended that the advocate had no authority to present such application. The decree-holders contended that they had only received the amount of Rs. 500. They had not received the amount of Rs. 166- 60 Ps. and as such the amount that was deposited on behalf of the judgment-debtor was not the full amount that the judgment debtor was required to deposit within 30 days of the sale and the time for depositing the amount cannot be extended. They had raised another contention about the sale tax dues but we are not concerned with it in this Revision Petition, as that question has been decided in favour of the petitioner. It has been also found that Mr. Acharya, the advocate for the petitioner had authority to present such application. The Appellate Court has found that there is no compliance with the conditions laid down in Order 21, Rule 89 of the Civil Procedure Code. The amount of Rs. 166-60 Ps. was deposited by the petitioner in the aforesaid Civil Miscellaneous proceeding in pursuance of the order passed by the Court for issuing interim stay of the execution of the decree in the application made by the petitioner for instalments, on condition that he deposits Rs. 150 and costs and that amount was deposited as per the order of the Court on 5-3-1966. It is evidently prior to the date of the sale proclamation. It could not be said to be the amount received by the decree-holders subsequent to the date of the sale proclamation. Furthermore it could not be at all said that that amount was received by the decree-holders at the date of the application Ex. 41. It could not be said that such amount was received by the decree-holders within the period of 30 days prescribed which would justify the judgment-debtor to make any such deduction and urge that he has complied with the condition laid down in Order 21, Rule 89 of the Civil Procedure Code. That amount was withdrawn by the decree-holders on 3-4-1968. Even the application Ex.-43 was subsequently given by the judgment-debtor, that is the petitioner for payment of that deposit amount to the decree-holders and the order has been passed by the Court to pay that amount to the decree-holders on 6-2-1968. The learned District Judge observed that taking any view of the matter, it could not be said that such amount was received within 30 days from the date of the sale. He therefore set aside the order passed by the Executing Court setting aside the sale under Order 21, Rule 92 (2), of the Civil Procedure Code and confirmed the auction sale. Being dissatisfied with that order, the present petitioner has filed this present Revision Petition in this court.

4. For appreciating the rival contentions urged at the Bar it is first necessary to refer to the relevant provisions of Order 21. Rule 89 of the Civil Procedure Code, which reads as under:

(1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court.

(a) For payment to the purchaser, a sum equal to five 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 ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.'

In the instant case the condition referred to in clause (a) is undoubtedly satisfied. Clause (b) of Order 21. Rule 89 (1) reveals that ordinarily a judgment-debtor is required to deposit in Court the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered.

5. In the instant case the amount specified in the proclamation of sale as that for recovery of which the sale was ordered, was Rs. 2,453. That amount has not been admittedly deposited in Court for payment to the decree-holders. But the latter portion of clause (b) empowers the judgment-debtor to deduct there from any amount, which has been received by the decree-holders since the date of such proclamation of sale. Undoubtedly on 1-1-1968, that is subsequent to the date of the proclamation of sale a sum of Rs. 500 was paid by the judgment-debtor to the decree-holders and that amount was received by the decree-holders. The judgment-debtor is therefore entitled to deduct that amount. The real controversy between the parties centers round the question whether the aforesaid sum of Rs 166-60 Ps deposited in the aforesaid Civil Miscellaneous Proceeding between the parties to comply with the condition of the order passed by the Court for grant of interim stay, could be said to be a sum received by the decree-holders since the date of the proclamation of sale. Evidently, it cannot be said to be a sum received by the decree-holder since the date of the proclamation of sale, taking into consideration only the fact that that amount was deposited on 5-3-1966 that is much earlier than the date of the proclamation of sale. Furthermore in the same civil proceeding no order was passed by the Court that this amount was to be deposited for payment to the decree holders. It also transpires from the record that the petitioner himself also did not deposit that amount making a statement that that amount be paid to the decree-holders towards the decretal dues.

6. Mr. Zaveri. the learned advocate appearing for the petitioner urged that at any rate that deposit should be considered as payment made by the petitioner to the decree-holders on the date he gave the application Ex. 41 wherein he made a statement that he had made such payment on 5-3-1966 by referring to the number of the proceeding and the date of deposit. He invited my attention to several decisions laying down the ratio that cash is not the only mode of payment. There could be other modes of payment and the test is whether the decree was satisfied within the prescribed period of 30 days. He has also invited my attention to the decisions which lay down the ratio that the amount referred to in the latter part of clause (b) of Order 21, Rule 89 (1) of the Civil Procedure Code need not be received through the Court but it could be outside the Court. In my opinion there is no quarrel with the ratio laid down in those decisions. I am in respectful agreement with that ratio What is to be decided is whether it could be said that on 3-2-1968 or prior to it, that is within 30 days of the date of the auction sale, this amount of Rs. 166-60 Ps. was received by the decree-holders. In my opinion, the answer is in the negative. The decree-holders themselves by the reply at Ex. 42 contended inter alia that they had not received any such amount. Their contention was that even the judgment-debtor did not comply with the condition laid down for the grant of the interim stay order by depositing the full amount ordered by the Court. It is only on 3-4-1968(?) that they have made the endorsement about withdrawing this amount. Even the judgment-debtor did not make any application prior to 3-2-1968 that the aforesaid amount is paid to the decree-holders towards the decretal dues. Even if we critically examine the application Ex. 41 there is no such categorical statement made that this amount deposited in the aforesaid Miscellaneous proceeding be treated as payment to the decree-holder. It is only after 30 days have passed that an application is made and in that application Ex. 43 which is undated he made a statement that this amount be paid to the decree holders and the Court passed such order on 6-2-1968. The Appellate Court therefore found that probably it could be said at the most, that amount was deposited for payment to the decree-holders on 6-2-1968, which is admittedly after the period of 30 days had already expired from the date of sale.

7. The Supreme Court in Tribhovandas v. Ratilal : [1968]1SCR455 has clearly laid down at page 375 that Rule 89 requires that two primary conditions relating to deposit must be fulfilled; the applicant must deposit in the Court for payment to the auction purchaser 5 per cent of the purchase money; he must also deposit the amount specified in the proclamation of sale less any amount received, by the decree-holder since the State of proclamation of sale for payment to the decree-holder. In the case which the Supreme Court had to deal with the decree-holder had agreed to abandon the execution proceedings and to wait for six months for receiving the mortgage dues from the trustees. It was therefore contended that the abandonment of the execution proceeding was in law equivalent to payment to the decree-holder of the amount specified in the proclamation of sale for the recovery of which the sale was ordered. That contention was negative observing that by abandoning the execution proceeding, the claim of the creditor is not extinguished: he is entitled to commence fresh proceedings for sale of property. Rule 89 of Order 21 is intended to confer a right upon the judgment-debtor even after the property is sold to satisfy the claim of the decree holder and to compensate the auction purchaser by paying him 5 per cent of the purchase money. The provision is not intended to defeat the claim of the auction-purchaser, unless the decree is simultaneously satisfied. In the instant case, it could not be said that the decree was simultaneously satisfied. The amount in question was not received by the decree-holders and the decree-holders had raised the contention by the reply Ex. 42 that they had not received any such amount.

8. Mr. Zaveri invited, my attention to the decision of a single Judge of the Calcutta High Court in Mahendra Chandra Das v. Parashmani Dasya : AIR1938Cal252 . It is observed therein at page 253 that it is provided by sub-clause of Rule 89 that the judgment-debtor is not bound to deposit the amount, which may have been received by the decree-holder since the date of the sale proclamation. In the present case the contention of the judgment-debtor was that the decretal amount has been discharged in full. On this view of the case there would be no thing left to deposit. The decree-holder himself did not challenge the fact of such satisfaction. That decision therefore has no application.

9. In Muthuvenkatapathy Reddy v. Kuppu Reddi AIR 1940 Mad 427 at page 431, the view expressed by the Full Bench of the Madras High Court is that any payment or adjustment made by the judgment-debtor which satisfies the decree-holder is a payment within the meaning of the rule. It was not necessary that the payment by the judgment debtor to the decree-holder must be in cash. Where the judgment-debtor assigns to the decree-holder a mortgage which had been executed in his favour in part satisfaction of the amount due under the decree and the judgment-debtor -pays into Court the difference between the amounts stated in the sale proclamation and the value of the mortgage assigned to the decree-holder, this is sufficient compliance. I am in respectful agreement with the aforesaid observations. That decision also does not help the petitioners case.

10. In Rabindra Nath v. Harendra Kuma : AIR1956Cal462 , it is observed that technically and from the point of view of construction the word 'received' In Order 21, Rule 89 (1) (b) is not limited by any qualification such as 'received through the Court'. The only point that the Court should be careful about in such cases is that it must have proof before it that the decree-holder has been fully satisfied. In the instant case the test laid down in that decision by P. B. Mukharji J. is not satisfied.

11. Thus none of the decisions relied upon by Mr. Zaveri is really of any assistance to determine the question that is posed before me.

12. In Anke Gowda v. Fatima Khatum AIR 1951 Mys 124 a single Judge of the Mysore High Court has observed that for the purpose of allowing the applicant to deduct from the amount to be deposited in Court, the amount received by the decree holder since the sale proclamation, Rule 89 contemplates the actual receipt of the amount by the decree-holder and a mere payment into Court of the sale proceeds of other items sold under the decree will not satisfy the requirements of the rule. The applicant cannot take credit for any amount paid by co-judgment-debtors who have not joined him in the application and, such credit could be taken only for any amount that may have been actually or constructively received by the decree holder and not for sum which having been deposited could have been received by him had he been minded so to do. In my opinion this decision lays down the correct ratio. Looking to the wording of clause (b) of Order 21, Rule 89 (1), this decision, in my opinion, lays down the correct position of law in this behalf. This decision cited by Mr. Shah for the auction-purchaser supports fully his submission

13. In Totaram v. Chhotu AIR 1923 Bom 299 (2) the Division Bench of the Bombay High Court has observed that as long as the Legislature had decided that only money received by the decree-holder can be taken into account, the Court cannot say that money paid in to Court and not put into the Pocket of the decree-holder is money received by him. In the instant case the test referred to by the Division Bench of Bombay High Court is admittedly not satisfied. This decision of the Division Bench of the Bombay High Court given prior to the date of the bifurcation is binding on me.

14. In Amritlal Narsilal v. Sadashiv AIR 1944 Bom 233 (2), a single Judge of the Bombay High Court has ob served that Rule 89 must be strictly complied with if judgment-debtor wants to take advantage of the concession given by that rule. In that case the deposit within limitations was short through mistake in calculation by small amount. It was held that Rule 89 is not complied with although deficit is made good discovery of mistake but after limitation. It was held that the deposit under the rule is intended net merely for benefit of auction purchaser and decree-holder but also to maintain solemnity of court sales. It was held that equitable principles cannot override imperative provisions of Rule 89. In the instant case it cannot be said that within 30 days from the date of the sale, the decree-holders had either actually received or even had constructively received this amount of Rs 166-60. It is therefore evident that the second condition laid down in clause(b) has not been complied with by the judgment-debtor who has been given a concession under this rule. That being the position the learned District Judge was quite justified in dismissing application Ex.41 and in setting aside the order passed by the Executing Court setting aside the sale under Order 21,Rule 92(2) of the Civil Procedure Code and in confirming the auction sale.

15. The Revision Petition therefore fails. The Revision Petition is dismissed. The petitioner is directed to pay the costs of the opponent No.1 (auction-purchaser) in the Revision Petition rule is discharged. Interim stay granted is vacated.

16. Petition dismissed.


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