Patanjali Sastri, J.
1. The petitioner in these connected civil revision petitions obtained a decree for Rs. 4,678 against the respondent on 23rd October, 1930 and, after recovering various amounts from time to time, applied on 7th January, 1938 for execution of the decree in E.P. No. 18 of 1938 for realising the balance of Rs. 627. The respondent's property was in due course brought to sale on 8th February,. 1939 and was purchased by a third party. The respondent then applied on 3rd March, 1939 under Section 19 of the Madras Agriculturists' Relief Act to enter satisfaction of the decree as no amount would, according to him, be payable to the petitioner if the provisions of the Act were applied to the decree. When this application was pending, he also applied under Order 21, Rule 89 of the Code of Civil Procedure to set aside the sale of his property making the necessary deposit on 8th March, 1939, the last day of the period limited for making such application. The petitioner as well as the auction-purchaser appear to have consented to have the sale set aside and an order setting aside the sale was accordingly passed on 17th March, 1939. Nothing however turns on such consent, as the Court was bound in any case to set aside the sale as the conditions of Order 21, Rule 89, were complied with. The petitioner thereupon applied by E.A. No. 341 of 1939 on 17th March, 1939, for the payment out to him of the amount due under the decree out of the sum deposited in Court by the respondent. This application and the respondent's application to scale down the decree were heard together on 27th July, 1939, and the Court below has dismissed the petitioner's application for payment and allowed the respondent's application to enter satisfaction of the decree. Against these orders these civil revision petitions have been brought by the petitioner-decree-holder.
2. It was contended for the petitioner that a deposit under Order 21, Rule 89, must be unconditional, that when the respondent made such deposit and got the sale set aside on 17th March, 1939, the decree was satisfied and discharged automatically on that date and that although the respondent had already applied to have the decree scaled down under the Agriculturists' Relief Act, no relief under the Act could be awarded to him as there was no decree in existence to be scaled down after 17th March, 1939. Reliance was placed in support of this contention upon the decision of Venkatasubba Rao, J., in Kunwiakutty v. Neelahandan Nambudri (1930) 58 M.L.J. 893 : I.L.R. Mad. 943 and particularly on the observation at page 947 that:
If the debtor wants to keep a dispute open, he cannot claim he benefit of this section. (i.e., Order 21, Rule 89). In fact, this accords to him a special indulgence. While he is thus favoured, care is taken to provide that the interests neither of the decree-holder nor of the purchaser are sacrificed. It follows from this that, when, the judgment-debtor pays the amount specified, he pays it unconditionally. The payment followed by the order setting aside the sale has the effect of automatically extinguishing the decree debt. If an application is made under Rule 89, and the deposit required by that rule is made within thirty days from the date of the sale, the Court has no option but to make an order setting it aside. (See Rule 92), This assumes that the decree-debt is discharged and the decree-holder's remedy is gone.
3. That was a case where a person, having filed a suit for a declaration of his title to certain property attached as belonging to another, applied under Order 21, Rule 89, to set aside the sale held in pursuance of the attachment but required that security should be taken from the decree-holder before the amount due to the decree-holder was paid out to him out of the deposit. There was no dispute that the debt due to the decree-holder under the decree was really due. All that the applicant claimed was that the property in his possession was not liable to attachment in execution of the decree. In those circumstances it was held that a deposit made for purposes of an application under Order 21, Rule 89, must be an unconditional deposit and that the Court had no power to call upon the decree-holder to execute a security bond for repayment of the amount to the applicant in the event of the latter succeeding in establishing his title to the property sold. This is far from saying that when the decree itself is gone, the decree-holder can claim payment out of the money deposited into Court.
4. I had occasion to consider the nature and effect of a deposit made under Order 21, Rule 89, in Raman Adiyoty v. Kannan Nambiar : AIR1940Mad725 where pending a suit to declare that a decree obtained against the karnavan of a tarwad was not binding on the junior members, the property of the family was brought to sale and the junior members had the sale set aside making the deposit required under Order 21, Rule 89, and sued the decree-holder for refund of the amount paid to him after obtaining a declaration that the decree was not binding upon them. It was held that the payment into Court by the junior members must be deemed to have been made under coercion and was liable to be refunded to them. That was a case where the decree was got rid of by a suit brought for the purpose by the persons affected. In the course of my judgment I also expressed the view that the result must be the same where the decree in execution of which the property has been sold is reversed in appeal. Referring to the observations of Venkatasubba Rao, J., cited above I observed:
These observations are rather widely expressed and if they were intended to convey the meaning that once a judgment-debtor pays the amount to set aside the sale under Order 21, Rule 89, he must be deemed to have made the payment voluntarily even though he has preferred an appeal from the decree in question, and will be disentitled to a restitution of the amount if the decree is set aside on such appeal, I must respectfully dissent from them.
And I proceeded to point out that the learned Judge could not be taken to have intended to lay down as a general proposition that in all cases a deposit made under Order 21, Rule 89, should be paid out to the decree-holder irrespective of the subsistence of the decree debt; for, in a later case Pappu Reddiar v. Pichu Aiyar : AIR1938Mad493 that learned Judge sitting with Abdur Rahman, J., thus explained and distinguished his own previous decision in Kummakutty v. eelakandan Nambudri (1930) 58 M.L.J. 893 : I.L.R. 53 Mad 943
In the former case, it has been held that Order 21, Rule 89, is inconsistent with the notion that payment can be made either under protest or coupled with conditions. True, but the whole judgment proceeds upon the footing, first that there was a subsisting decree, that is, subsisting in fact and secondly, there was a decree-holder, one who really answered that description .... Order 21, Rule 89, assumes the existence of a 'decree' and of a ' decree-holder and where the very foundation is gone, namely, a subsisting, decree, it would be futile to contend that the decisions which refer to unconditional payment can apply.
In the present case the position is not essentially different. By virtue of the provisions of the Madras Agriculturists' Relief Act the decree in question became liable to be scaled down and having regard to previous payments must be held completely satisfied and discharged. In other words the decree in pursuance of which the property was sold is gone just as if it was reversed on appeal or set aside in a suit brought for the purpose, and the petitioner can have no more right to claim the money deposited in Court under Order 21, Rule 89, than a decree-holder whose decree is reversed on appeal or set aside in a suit. The deposit made by the respondent to avert the sale of his property can be considered to be no more voluntary than that made in Raman Adiyoti v. Kamnan Nambiar ( : AIR1940Mad725 already referred to or in Yenkatadri Appa Baa v. Venkata Kutumbarao : AIR1941Mad635 and cannot have the effect of rendering the application already filed by him for relief under the Agriculturists' Relief Act infructuous.
5. It was said that the respondent could well have applied for the sealing down of the decree before the property was brought to sale and having allowed the sale to take place after the Act came into force on the footing of a subsisting decree, he should be held to have waived his right to relief under the Act. I fail to appreciate this argument. The respondent was entitled to apply for relief so long as the decree continued to subsist except in the circumstances contemplated in Section 20 of the Act, (see Kumarasimmi Pillati v. Thiruvengadatha Aiyangar : AIR1939Mad613 and he was equally entitled to avert the sale of his property by making the deposit under Order 21, Rule 89, before such sale was confirmed. It was of course open to the respondent to have applied earlier for scaling down the decree and if he had done so the question would not have arisen, but this can hardly have any bearing on the question which now arises for determination, and I can see no ground for inferring waiver in the circumstances of the case.
6. In the result the civil revision, petitions are dismissed with costs. One advocate's fee.