Govinda Menon, J.
1. When this petition was taken up for hearing it was noticed that the order of the lower Court is appealable under Order 43, Rule (1)(j) of the Civil Procedure Code and when that was discovered, Mr. Venugopalachari for the petitioner filed an application for leave to convert the civil revision petition into a civil miscellaneous appeal. As the civil revision petition itself was filed before the expiry of the period of limitation and as no question of bar of time arises and since the court-fee in the civil revision petition was more than what would have to be paid in a civil miscellaneous appeal, I allowed the petition and the civil revision petition was converted into a civil miscellaneous appeal, the jurisdictional value of which being below Rs. 5,000 it is permissible to have the civil miscellaneous appeal disposed of by a single Judge. It is on the basis that the proceedings before me are in the nature of a civil miscellaneous appeal that I dispose of the case now.
2. The appellants herein were the decree-holders who obtained a decree for a sum of money against the judgment-debtor. Properties were attached and sold in pursuance of that decree whereupon the first respondent herein claiming to be a previous purchaser of some items of properties from the judgment-debtor filed an application under Order 21, Rule 89, Civil Procedure Code, for setting aside the sale. Along with the deposit of the necessary amount, an application supported by an affidavit was filed. Paragraph 6 of the affidavit is in the following terms:
Without prejudice to my contentions in the appeal and my right to recover it from the decree-holders in the event of my success in appeal, I am paying towards the decree lest the sale of the properties should be confirmed the amount due under the decree...in full.
The decree-holder objected to this deposit by means of a counter in which it was stated that the deposit was not unconditional and unreserved and was made under protest. In such circumstances, the decree-holder urged that the deposit was not valid under Order 21, Rule 89, and therefore the sale should not be set aside. The learned District Judge was of opinion that it was an unconditional deposit even though the paragraph referred to above stated that the person who deposited the money reserved his right to claim the amount in the case of his success in another appeal. A Full Bench decision of this Court in Krishna Aiyar v. Arunachalam Chettiar : (1935)69MLJ349 was cited before the learned Judge, but the learned Judge distinguished that decision by stating that the intention of the person who deposited the money was only to attack the validity of the sale and such a mere intention will not disentitle him to take steps under Order 21, Rule 89 to have the sale set aside. I am afraid the learned Judge has not properly understood the import of the Full Bench decision above referred to. Beasley, G.J., in the Full Bench was following a decision of Venkatasubba Rao, J., in Kummakutti v. Neelakandan Nambudri : AIR1930Mad921 . In the latter case, Venkatasubba Rao, J., observes at page 947 as follows:
If the debtor wants to keep a dispute open, he cannot claim the benefit of the section.
What the respondent has done in the lower Court is exactly what was interdicted by Venkatasubba Rao, J. The respondent in paragraph 6 of the affidavit states that he wants to keep alive the dispute regarding the validity of the assignment in his favour and if he succeeded in the appeal which was then pending, he would be entitled to claim the money back which has been how deposited. It is very difficult to see how this can be considered as an unconditional deposit. Mr. Amudachari for the respondent contends that what the Full Bench lays down is only that the person who deposits the money cannot contend that the money should not be paid over to the decree-holder without security. It is only if a condition is put upon the payment out of the money to the decree-holder that the principles enunciated in the Full Bench will be applied. I am unable to agree with Mr. Amudachari that such a distinction can be drawn with regard to the observations of Beasley, C.J., at page 976 of Krishna Aiyar v. Arunachalam Chettiar : (1935)69MLJ349 . In discussing the facts of that particular case, reference was made to the circumstance that the deposit in that case was subject to a condition or under protest and that it was not meant to be taken by the decree-holder unconditionally. In the present case also, the respondent does not say that the money when drawn out by the decree-holder would remain the decree-holder's property. The respondent reserved to himself the right to call back the money and claim it in the event of his success in the appeal that was pending. In my view, the learned District Judge erred in not applying the Full Bench decision to the facts of the present case and since the deposit under Order 21, Rule 89 is not valid under the law, the order of the lower Court setting aside the sale is wrong.
3. The appeal is allowed and the order of the learned District Judge is set aside. The sale stands and is therefore confirmed. The appellants will get their costs from the respondents both here and in the Courts below.