1. The appellant obtained a preliminary decree on a mortgage in 1932, the final decree being dated 19th January, 1933. The preliminary decree provided that the various items should be sold in a certain order, item I being sold last. The present contesting respondent the fifth defendant, is a puisne mortgagee of this item ,I which was sold as lot 6. The sale was held on 24th April, 1936, and the property with which we are now concerned was sold to a third party. The fifth defendant made a deposit of Rs. 2,160 and odd which was the amount due under the decree after deducting the prices realised by lots I to 5 plus the five per cent, payable to the purchaser and in E.A. No. 663 of 1936 she prayed the sale of lot No. 6 to be set aside. This application was dismissed on 19th November, 1936, on the ground that the deposit was insufficient and the sale was confirmed.
2. Against this order an appeal was filed by the fifth defendant, and this appeal was allowed on 12th October 1937, the order providing for remand of the application to the executing Court which was directed to set aside the sale of lot No. 6 if the sale of lots 1 to 5 was confirmed and otherwise to hold a re-sale of lot No. 6 in order to comply with the direction in the decree that this lot be sold last. Against this order of remand there was an appeal by the purchaser which was dismissed on 21st July, 1939. Meanwhile Madras Act IV of 1938 had come into force and the fifth defendant filed an application under Section 19 of that Act praying the Court to amend the decree and record full satisfaction on the basis of the payments already made. There was also an application by the decree-holder for leave to draw out the money deposited into Court. The fifth defendant's application under Act IV was rejected and the decree-holder's application to draw out that deposit was allowed. Against these two orders appeals were filed to the District Court which reversed both the decisions of the trial Court. The two second appeals are now preferred by the decree-holders against the decision of the District Court.
3. It is contended that no appeal lay against the trial Court's order rejecting the application for relief under Section 19 of Madras Act IV of 1938. The appeal purports to have been filed under the rules framed under the Act the validity of which was subsequently challenged successfully. But the amendment to Madras Act IV of 1938 passed by Act XV of 1943 gives a right of appeal against an order under Section 19 amending or refusing to amend a decree, or entering or refusing to enter satisfaction in respect of a decree, and this amendment is under Section 5 of the Amending Act deemed to have come into operation on the 27th October, 1939. An attempt has been made on the strength of a decision in Abdul Rasak Rowther v. Abdul Rahim Rowther : AIR1945Mad304 to contend that this retrospective right of appeal will not save the validity of the appeal to the District Court. It seems to me that the decision quoted has been misunderstood. That was a case where the trial Court's order was passed before the date to which the right of appeal is made retrospective. In the present case the application to scale down the decree was dismissed on the 3rd February, 1940; that is to say, on the date of the dismissal having regard to the retrospective operation of the amending Act, the order was an appealable order and the appeal as decided by the District Judge must be deemed to have been within his jurisdiction having regard to the effect of the Amending Act,
4. It is further contended that the fifth defendant having made an unconditional deposit of the amount due in respect of this property towards the decree, there can be no question of refunding the amount which she has deposited merely because the decree has been subsequently satisfied by the operation of Section 19 of Act IV of 1938. Here again it seems that the appellant must fail. The deposit under Order 21, Rule 89 of the Code of Civil Procedure is no doubt unconditional, in the sense that the judgment-debtor has bargained to pay as much money as is due under the decree in return for the cancellation of the sale and he cannot go back on his bargain. But the amount which he has to pay is always subject to modification before the final order is passed by reason of any subsequent payment towards the decree or by reason of any error in calculation of the amount due or presumably by reason of any deduction in the amount due under the decree by process of law. Under the proviso to Rule 89(1) of Order XXI of the Code of Civil Procedure as amended in Madras, it is specially provided that ' where the immoveable property sold is liable to discharge a portion of the decree debt the payment under Clause (b) of the sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay.' Under the present decree, the owner of the sixth lot was only liable to pay so much of the decree amount as remained after the sale of the first five items. This amount was something less than the amount deposited at the time when the deposit was made. But by a subsequent judicial proceeding the amount of the balance of the decree has been reduced to nothing. On no consideration can the decree-holder be held entitled to draw out the Court deposit which is totally in excess of the amount due to him under the decree, nor is there any reason for refusing to refund this excess to the depositor. In this view I agree with the decision of the lower Court on both the appeals and dismiss both the appeals -with costs. (One Advocate's fee in Appeal No. 53 of 1941).