Alfred Henry Lionel Leach, C.J.
1. The appellant is the Zamindar of Vuyyur and was the defendant in the suit out of which this appeal arises. It was filed by the respondent to recover damages for an alleged wrongful attachment of his property. The trial Court (the Court of the District Munsif of Bezwada) decided against the respondent and dismissed the suit, but on appeal the Subordinate Judge of Bezwada reversed the decision of the District Munsif and granted the respondent a decree for Rs. 23-12-2. The appellant appealed to this Court, but his appeal was dismissed by King, J., who agreed with the judgment of the Subordinate Judge, but gave a certificate which permitted the filing of this appeal under Clause 15 of the Letters Patent. The real question involved in this appeal is whether the case is governed by the decision of the Full Bench in Krishna Aiyar v. Arunachalam Chettiar : (1935)69MLJ349 , or by the judgment in Kotla Satyam v. Thammana Perraju (1931) 34 L.W. 399 which was decided by a Division Bench. The learned Judge held that Kotla Satyam v. Thammana Perraju (1931) 34 L.W. 399 applied.
2. Before referring to the authorities it will facilitate the appreciation of the argument if the facts in the present case are stated. In S.C.S. No. 200 of 1926 of the District Munsif's Court of Nuzvid at Bezwada the appellant sued for a decree against his tenant, Rangamma, for the rent owed by her in respect of Fasli 1332. He obtained a decree and on the 15th March, 1930, applied for the attachment of the land leased to Rangamma. The order of attachment was issued on the 16th July, 1930, but before this was obtained, to be exact, on the 16th June, 1930, Rangamma sold her tenant's interest to the respondent. On the passing of the order of attachment, the respondent applied to have it set aside, but his petition was dismissed and on the 8th December, 1930, the property was sold in execution proceedings. The respondent did not institute a suit to challenge the order passed on this application, but on the 5th January, he filed an application for the setting aside of the sale under Order 21, Rule 89 of the Code of Civil Procedure and as he deposited the required amount the sale was set aside. Rangamma was also in arrears with her rent for Faslis 1333 and 1334. To enforce payment the appellant filed S.C.S. No. 201 of 1926. He obtained a decree and an order of attachment in the subsequent execution proceedings. Notwithstanding his failure in the previous proceedings, the respondent applied for an order setting aside the attachment and on this occasion he was successful. The appellant did not challenge the validity of this finding by suit, as he could have done, and his failure to do so meant that the respondent's title was established.
3. We consider that the present case does not come within the judgment in Krishna Aiyar v. Arunachalam Chettiar : (1935)69MLJ349 . The decision there was that once the proper amount has been deposited in Court on an application under Order 21, Rule 89, made by a person entitled to present it, the Court has no power to entertain or proceed with the hearing of an application under Rule 90, but must set the sale aside under Rule 89. The Court observed that:.the reported cases where claimants made payments to avert sales of property and the payments were therefore payments made under coercion are of no real assistance in this case.
4. The Court was not considering a case like the present one where a person is suing to recover the amount which he deposited in an application under Rule 89 on the ground that he was compelled to make the deposit in order to save what he claimed to be his property. In Kotla Satyam v. Thammana Perraju (1931) 34 L.W. 399 it was held that a person, who, in order to get a sale set aside, filed an application under Rule 89 and under protest made the required deposit was entitled to sue to recover the consideration for the sale on the ground that it was a payment made under coercion within the meaning of Section 72 of the Contract Act. The payment which the respondent made into Court when he applied for an order setting aside the sale of the 8th December, 1930, was not made under protest, but we consider that there was coercion within the meaning of Section 72. Unless he made the deposit, he could not get the sale set aside and the title to it would consequently vest in the appellant. In Kanhayalal v. National Bank of India the Privy Council held that the word 'coercion' used in Section 72, is used in its general and ordinary sense as an English word and that its meaning is not controlled by the definition in Section 15. A person who is compelled to make a payment in order to save his property being sold in circumstances such as we have here does not make the payment voluntarily but is subject to coercion within the meaning of Section 72 of the Contract Act.
5. For these reasons, we agree with the decision of King, J., and dismiss the appeal with costs.