1. Petnr. who was not a party to the decree filed an appln. under Order 21 Rule 89, C. P. C. to set aside a Ct. sale in execution. The Dist. Munsif & the Dist. J. in appeal concurred in finding that the petnr. had no 'locus standi' to file such an appln, as he was neither the judgment-debtor nor a person deriving title from him nor any person holding an interest in the property & dismissed his appln.
2. The facts are briefly these. The judgment debtor is stated without contradiction by the other side to be an old man of about 80. The Ct sale to execution of the decree against him was held on 14-10-1947 at which a house belonging to him to Dharapuram was sold for Rs. 1010. On 27-10-1947 the judment-debtor executed a usufructuary mtge. of some other property, the mtge. specifically reciting as part of the consideration a sum of Rs. 1500 which the mtgee. had to deposit in the executing Ct. What is most important is a specific direction in this mtge. deed to the petnr. to pay this money into Ct. & to get this house released from attachment. In accordance with this direction, the petnr. filed an appln. under Order 21 Rule 89 on 10-11-1947 making the full deposit required by that section. The point for consideration is whether his appln. was maintainable.
3. It is in the first place urged that the petnr,was an agent of the judgment-debtor & in this capacity made the deposit. Reliance Is placed on 'Hanumayya v. Bapanayya', IL R 1945 Mad 566 : AIR 1945 Mad 188 which held that it was sufficient if the deposit was made through an agent & that the personal attendance of the Judgment-debtor when depositing the money is not necessary. Mr. Desikan for the resp. concedes this position, but urges that the appln. under Order XXI, Rule 89 by the petnr. is not maintainable & that in the circumstances it was only the Judgment-debtor who could have filed it. He contends further that the petnr. can in no sense be considered a recognised agent within the meaning of Order 3 Rule 2, C. P. C. as he is not the holder of a power of attorney. These technical positions, can be met by counter technical positions, I think, to the advantage of the petnr. The facts of this case are peculiar & not on all fours with those in 'Krishna Naicker v. Sivasaml Chetti : AIR1943Mad709 on which Mr. Desikan relies torefute the petnr's possible position as a person who holds an interest in the property. The facts there were really quite different as the person who applied to set aside the sale had purchased some other property from the Judgment-debtor long prior to the Ct. sale & under his sale deed he merely had to deposit the price towards the decree. He made one or two deposits in driblets, then the property was brought to sale & afterwards he sought to come up with an appln. under Order 21 Rule 89, C. P. C. to set aside the sale as one interested in the property. His appln. was ultimately dismissed & if I may say so with great respect to the Bench, quite rightly. There were some observations in that decision to the effect that the interest in the property contemplated by this rule is an Interest in the very property the sale of which is sought to be set aside & that indirect interest is not sufficient. In view of the facts being different here, I am inclined to the view that in view of the specific direction & obligation imposed on petnr. In this registered mtge., he cannot be held to be a person who does not have an interest in the property brought to sale. If he failed to make the deposit & get the attachment on it set aside, his usufructuary mtge., would have failed for partial lack of consideration & from this point of view he was interested in getting the sale of this property set aside & its attachment raised.
4. From another standpoint, there can also be no doubt that the petnr. acted as the agent of the judgment-debtor. A power of attorney is widely defined in Section 2(21), Stamp Act, as including an Instrument empowering a specified person to act for & in the name of the person executing It. In this registered mtge. there is a direction by the judgment-debtor to this petnr. to deposit this amount of Rs. 1500 in Ct. & to get this house released from attachment. A reasonable construction of that clause in this mtge. is that it gave the petnr. sufficient legal power to make the deposit & to file this appln. under Order 21, Rule 89, C. P. C. on which alone in law the property could be released from attachment. It is contended that the petnr. could not possibly have been empowered by this mtge. deed to file for instance a suit on behalf of the judgment-debtor. I am in complete agreement, but the view I have no hesitation in taking on the recital of Ex. A Is that it specifically authorised the petnr. both to make the deposit & to take the necessary steps to have the attachment raised. He was not authorised to appear for the judgment-debtor in any other Ct. proceeding. This is, I think, the only reasonable view of the action which petnr, took to implement the contract he had made under Ex. A. No doubt, it would have been better & more regular if the judgment debtor had associated himself with this appln. & also this revn. petn. He was, however, an old man of over 80 & had done his best within the limits of his legal knowledge to mtge. some of his other property & arrange to the best of his ability for the deposit of this money in Ct. in time through the agency of the petnr. It would in my view be a travesty of law & justice if sheer technicality should prevail & the Ct. sale of this house not set aside in the circumstances & the auction purchaser who incidentally happens to be the decree-holder himself should make his bargain good with the seal of Ct. approval on the ground of technicality alone.
5. The petn. is allowed & the Ct. sale is set aside & the appln. under Order 21, Rule 89, C. P. C. will be allowed with costs throughout. On the question of costs, Mr. Desikan contends that no equitable considerations arise under Order 21, Rule 89, In applns. which make a concession to the judgment-debtorbefore confirmation of a Ct. sale. It is settled lawthat Order 21, Rule 89 must be strictly complied withis that no deficiency, for instance, in the quantumof the deposit will be condoned under any circumstances. It is, as observed in 'Karunakaran Menon v. Krishna Menon', 39 Mad 429; AIR 1916 Mad 717 in the nature of an indulgence to judgment-debtors, & a judgment-debtor who wishes to take advantage of its provisions must strictly comply with the same. But 'strict enforcement' mustbe interpreted-in accordance with rural conditions,the knowledge of law prevailing in rural areas unconnected with Cts. by any controlled channel oflegal service & other factors, unless Order 21 Rule 89 isto degenerate into mere ruthless machinery towhich no equitable principle can, under any circumstances, be applied, I think in this case thedecree-holder being himself the purchaser & shefull deposit having been made by this agent of thejudgment-debtor within the thirty days, the decree-holder should have contented himself with drawing the whole of the amount instead of pressing on ground's of mere technicality for the saleto himself being confirmed. It would be inequitable in the circumstances not to direct the decree-holder to pay the Judgment-debtor his costs throughout.