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Pallipurayil Asan Kutti Vs. Mukkolakkal Koyyaman Kutti - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1937Mad342; (1937)1MLJ658
AppellantPallipurayil Asan Kutti
RespondentMukkolakkal Koyyaman Kutti
Cases Referred and Chakrapani Padhi v. Krushno Naiko
Excerpt:
- .....sale. on objection taken by the decree-holder that the application was barred by limitation lie filed an application to amend the memorandum filed by him on the 21st december, 1933, with the receipt for the money deposited by adding a prayer thus:it is prayed that the sale in the above suit may be set aside.4. this amendment was allowed by the learned district munsiff and he set aside the sale. on appeal the learned district subordinate judge of north malabar reversed the order of the district munsiff holding that a memo, cannot be called a proceeding within the meaning of section 153, civil procedure code, and it was not capable of amendment and there was no proper application under order 21, rule 89, civil procedure code. it is against this order the present civil revision petition.....
Judgment:

Venkataramana Rao, J.

1. This Civil Revision Petition arises out of an application made to set aside a sale of immovable property under Order 21, Rule 89, Civil Procedure Code. The sale was held on the 29th November, 1932. The property belonged to the first defendant who made no application to set aside the sale. It was purchased by the assignee decree-holder. The third defendant in the suit who is a mortgagee put in an application I.A. No. 616of 1932 on the 16th December, 1932, praying that a challan may be issued depositing in the Taluk treasury the amount mentioned in the said application.... In the application the purpose for which the challan was applied, the amount of the decree poundage-fee, the percentage of purchase money required for setting aside the sale under Order 21, Rule 89, the name of the purchaser and the fact of sale are all mentioned. The challan was accordingly issued, money was deposited and a receipt obtained from the treasury. The said receipt was filed in Court on the 21st December, 1932, with an application on behalf of the third defendant by his pleader. The application which was styled a memorandum ran thus:

The receipt obtained in the matter of the deposit into Kurumbranad taluk treasury the sum of Rs. 385-14-6 comprising the decree amount in the above suit, poundage fee and percentage of purchase money (auction profit).

2. But there was no formal prayer to set aside the sale or any independent application made to do so. On the 4th January, 1933, an application was made to set aside the sale. In the affidavit he alleged the fact of his applying for the challan and also the application filed by him along with the receipt into Court. Paragraphs 7 and 8 of the said petition are important and they are as follows:

7. The application for challan on the 16th December, 1932, the memorandum filed on the 21st along with the receipt for the deposit of the money are only for the purpose of getting the sale set aside. The above applications should be also taken for an application to set aside the sale.

8. If the Court should consider for any reason that it could not grant relief as per the application filed herewith for setting aside the sale, the sale should be set aside on the strength of the application for challan and the memorandum and I am prepared to pay the necessary court-fee therefor.

3. It will thus be seen that apart from his independent prayer to set aside the sale he requested the Court to treat the application for challan and the memorandum filed on the 21st December, 1933, as applications to set aside the sale. On objection taken by the decree-holder that the application was barred by limitation lie filed an application to amend the memorandum filed by him on the 21st December, 1933, with the receipt for the money deposited by adding a prayer thus:

It is prayed that the sale in the above suit may be set aside.

4. This amendment was allowed by the learned District Munsiff and he set aside the sale. On appeal the learned District Subordinate Judge of North Malabar reversed the order of the District Munsiff holding that a memo, cannot be called a proceeding within the meaning of Section 153, Civil Procedure Code, and it was not capable of amendment and there was no proper application under Order 21, Rule 89, Civil Procedure Code. It is against this order the present Civil Revision Petition has been filed. There is a conflict of view in this Court whether an application for challan or an application accompanying the receipt for the money deposited could by itself be treated as applications for setting aside the sale. In an unreported decision C.R.P. No. 106 of 1912 Sankaran Nair, J., was of opinion that an application for deposit of money may be treated as an application to set aside a sale. In Venkatasubba Rao v. Narayana Rao (1921) 15 L.W. 450, Krishnan, J., took a different view. He says that a lodgment schedule filed in Court along with the money as required by Rule 3 of the Civil Rules of Practice cannot be treated as equivalent to an application required by Order 21, Rule 89, Civil Procedure Code, in Chakrapani Padhi v. Krushno Naiko (1925) 23 L.W. 757 Waller, J., took the same view. In Parat Veettil Seethi v.. Ambalath Veettil Kolathur (1915) 32 I.C. 45 when the question arose under circumstances exactly as in the present case Kumaraswami Sastri, J., was inclined to the view that it would have been open to the Court to amend the memorandum filed as in this case and he observed:

In the present case it appears that a petition was put in by the petitioner on the 6th June, 1911, stating that he had paid the money into the treasury and though the petition contains no formal prayer to set aside the sale there can be little doubt that this was the object of the petitioner. This petition if it had contained a formal prayer would have been in time if it was filed on the 6th June, as petitioner had the benefit of the summer vacation intervening. There is nothing to prevent the Court from allowing the petitioner to amend the petition by adding a formal prayer. This course was adopted by Sadasivier and Napier, JJ., in appeal against Appellate Order No. 66 of 1913 in an analogous case.

5. I may observe that the view taken in Calcutta and Allahabad is that an application for a challan or an application for deposit accompanying the receipt as in this case can be treated as applications to set aside the sale on the ground that the very object of the application was to set aside the sale and Order 21, Rule 89 does not require an application in writing Vide Abdul Latif Moonshi v. Jadub Chandra Mitter I.L.R. (1897) 25 Cal. 216 and Ramraj Singh v. Rabi Prasad (1921) 63 I.C. 140 whether this view can be accepted or not, the view of the lower Court that the memo, is not a proceeding and not capable of amendment is unsound. In Govindaswami Mudaliar v. Rasu Mudaliar (1934) 68 M.L.J. 41 : I.L.R. 58 Mad. 781 Venkatasubba Rao, J., adopted the definition of 'proceeding' given by Black in his Law Dictionary for interpreting the term 'proceeding' in Section 17 (2), Clause (6) of the Indian Registration Act, viz.:

Any application to a Court of justice however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages or for any remedial object.

6. I would accept the same interpretation for the term 'proceeding' in Section 153 of the Civil Procedure Code. The application for challan or the memo, of the 21st December, 1932, would be a proceeding within the meaning of Section 153, Civil Procedure Code. There is nothing in Venkatasubba Rao v. Narayana Rao (1921) 15 L.W. 450 and Chakrapani Padhi v. Krushno Naiko (1925) 23 L.W. 757 which is against this view. It was therefore competent to the learned District Munsif to allow the petitioner to amend the application as he did. The learned District. Judge in my opinion was wrong in interfering with the exercise of discretion on the erroneous view that the memorandum filed on the 21st December, 1932, is not a proceeding. I therefore reverse the order of the learned District Judge and restore that of the District Munsiff. But I direct the petitioner to pay the respondent his costs in all the Courts including the costs of the revision petition. I further direct that the respondent will not be accountable for any mesne profits up-to-date of delivery but the same will be taken as set off against the interest payable on the amount of his purchase money.


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