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Bhyraraju Ramaraju Vs. Pulavarthi Lakshmiah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad103
AppellantBhyraraju Ramaraju
RespondentPulavarthi Lakshmiah
Cases ReferredArunachalam Chetty v. Somasundaram Chetti. In
Excerpt:
- - jaggayya air1929mad745 .but these decisions do not show necessarily that the petition of 12th april though incompetent and useless on that date, did not become a good petition on the 15th after the receipt of the transmitted decree on that date. 4. then it is said that the order under order 21, rule 72, must be taken to be subject to the provisions of section 73. that is perfectly true......to the amount of the decree or where it is less, the effect of the order for set-off is that the decree-holder need not pay any amount either on the date of sale or some time after. the effect of the order for set-oft' is that the whole of the amount of the bid minus the poundage expenses should be taken as set-off against the decree amount and nobody looks forward for payment either on the date of the sale or fifteen days thereafter. but if the amount of the bid is far larger than the decree amount, then, though the decree-holder may be excused from depositing 25 per cent of the purchase money on the date of sale, he has still got to deposit an amount fifteen days afterwards to make up the whole of the purchase amount. in such a case order 21, rule 85, operates. but in a case where.....
Judgment:

Ramesam, J.

1. The facts which give rise to this revision petition may be stated as follows: The petitioner before me obtained a money decree in O.S. No. 617 of 928 on the file of the District Munsif's Court, Tanuku against four judgment-debtors. In execution of that decree he brought certain properties belonging to all the judgment-debtors to sale. The sale was effected on 2nd April '1929. Prior to the sale he applied under Order 21, Rule 72 for permission to bid in the auction and to set off the purchase amount against his decree as far as it goes. This application was ordered. When the sale was made on 2nd April 1929, giving operation to the order for set-off nothing was deposited by the petitioner nor was he asked to make any deposit. The respondent before me obtained a money decree in O.S. No. 33 of 1927 on the file of the Subordinate Judge's Court of Narasapur against three of the four judgment-debtors of the other 'suit. On 11th April 1929 he applied before the Subordinate Judge of Narasapur for transmission of his decree to the District Munsif's Court, Tanuku. It was dispatched on 12th April and reached Tanuku on the 15th April. In anticipation of the arrival of the decree the respondent applied for execution of his decree in the District Munsif's Court of Tanuku and for rateable distribution on the 12th April. The District Munsif of Tanuku has now allowed rateable distribution to the respondent. In the course of his judgment he relied on a case reported in Arunachalam Chetty v. Somasundaram Chetty [1920] 59 I.C. 86. Hence this revision petition.

2. The first point argued before me is that the application of the respondent on 12th April is incompetent. This is true as is shown by the decisions in Nanjunda Chettiar v. Nalla Karuppan Chettiar : AIR1928Mad496 and Ankineedu Prasad v. Jaggayya : AIR1929Mad745 . But these decisions do not show necessarily that the petition of 12th April though incompetent and useless on that date, did not become a good petition on the 15th after the receipt of the transmitted decree on that date. It is unnecessary to discuss this point further in view of my conclusion on the next point.

3. The second point argued for the petitioner is that his sale was completed on 2nd April 1929 and the proceeds were fully received on that date by way of set-off and therefore the respondent is not entitled to rateable distribution as in any view his execution application can be deemed to be regarded as filed on the 15th. In reply to this argument, Mr. Satyanarayana relies on Order 21, Rules 84 and 85 of the Code. Rule 84 says that at the time of sale 25 per cent of the amount bid in auction should immediately be deposited subject to any order under Order 21, Rule 72. Rule 85 says that excluding the amount ordered to be set off under Rule 72, the rest of the purchase money should be paid within fifteen days from the date of sale. Now in a case where the order for set-off has been made before the sale, the actual amount of the bid minus the poundage and other deductions may be equivalent to the amount of the decree or more or less. Where it is equivalent to the amount of the decree or where it is less, the effect of the order for set-off is that the decree-holder need not pay any amount either on the date of sale or some time after. The effect of the order for set-oft' is that the whole of the amount of the bid minus the poundage expenses should be taken as set-off against the decree amount and nobody looks forward for payment either on the date of the sale or fifteen days thereafter. But if the amount of the bid is far larger than the decree amount, then, though the decree-holder may be excused from depositing 25 per cent of the purchase money on the date of sale, he has still got to deposit an amount fifteen days afterwards to make up the whole of the purchase amount. In such a case Order 21, Rule 85, operates. But in a case where the amount of the bid is less or equal there is no scope for looking forward for payment under Order 21, Rule 85.. In such circumstances in my opinion the whole of the set-off must be deemed as made on the date of sale and the whole of the amount must be deemed to have been received or realized eo instanti the sale is made. In this view the whole of the amount was realized on 2nd April. The execution application of the respondent must be deemed as made on the 15th. Therefore Order 21, Rules 84 and 85, do not avail.

4. Then it is said that the order under Order 21, Rule 72, must be taken to be subject to the provisions of Section 73. That is perfectly true. This only means that if there are persons by the time of the sale who would be entitled to some rights under Section 73, that is to claim rateable distribution, the order under Order 21, Rule 72 must be taken subject only to the operation of Section 73 and the decree-holder bidder cannot claim to set-off his decree against the amount of the bid and refuse to pay the amount due to the other decree-holders claiming to be entitled under Section 73. But if there are no such persons entitled to claim rateable distribution under Section 73, either at the time of the sale or within fifteen days from the date of the sale, then the order to set-off completely works out as a payment on the date of the sale in cases where the amount of the bid is less or equivalent to the amount of the decree, or fifteen days after the date of sale where the amount of the bid is more than the amount of the decree, as the case may be; and in such a case there is no effect to be given to the words 'subject to the provisions of Section 73' and decree-holders coming long after cannot claim the benefit of Section 73 by applying to the Court asking the decree-holder to deposit his amount and then describing it as 'receipt of the assets' and praying for rateable distribution out of it. This is clear from Surendra Moham Sinha v. Kartick Chandra Sen [1921] 62 I.C. 857.

5. It is true that this last case which I mentioned does not throw any light on the effect of Rule 85 and on the distinction I made between the cases where the amount of the bid is less or equivalent to the amount of the decree and the cases where the amount of the bid is more than the decree amount. The only other case I have got to discuss is Arunachalam Chetty v. Somasundaram Chetti. In that case two items were sold. The first item was purchased by the decree-holder who had previously obtained permission to bid and to set off. That sale was on 28th August 1918. The second item was sold on the same date, but the money was realized on 10th September 1918. The petitioner in the High Court applied for rateable distribution on 29th August 1918. Prom a perusal of the printed papers it does not appear that there was a prior execution petition pending. Seshagiri Iyer, J., in the High Court, reversed the order of the lower Court refusing rateable distribution and directed the decree-holder to deposit his amount and permitted rateable distribution even as against his purchase money. Two possible views can be taken of this case. If the sales are all regarded as one sale and the assets to be realized by the sales cannot be split up into two parts, then the assets must be regarded as received only on 10th September. Undoubtedly the judgment is right on such a view. But another possible view is this. There were two separate sales and two separate purchasers. One purchaser, namely the decree-holder, had a right to set off and he need not deposit any purchase money on the date of the sale, that is 28th August. There were no persons then entitled to any rateable distribution under Section 73 in so far as the decree-holder's purchase amount was concerned. In this view the judgment of Seshagiri Iyer, J., is erroneous and one would have to dissent from it. Which is the correct view in a case of several items purchased by different purchasers need not be settled now because that point does not arise in this case. In this case all the items were sold on the same day and all were purchased by the decree-holder for Rs. 3,100 (this becomes 2979-11-0 if poundage is deducted) and all the amounts must be regarded as set off on that day, the decree amount being 3,457-0-6. In such a case there being no persons having rights under Section 73 on the date of sale, the order under Order 21, Rule 72, cannot be made subject to Section 73. I therefore allow the petition and dismiss the application of the respondent for rateable distribution with costs here and in the lower Court.


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