1. I have already explained in the judgment just now delivered that the unsuccessful claimant in addition to bringing a claim suit paid the decree amount and 5 per cent under protest into Court under Order 21, Rule 89, and got the sale of the property sot aside and that his petition in execution for restitution of the money so paid was unsuccessful on the ground that the petition did not lie in execution and the remedy, if any, was by separate suit. This civil revision petition arises from the judgment in the small cause suit brought by the claimant as plaintiff (respondent 1) for the recovery of the money which he had paid for setting aside the sale. The defence was that the plaintiff-respondent 1, was not; legally entitled to recover back the money paid under '0. 21, Rule 89. The Small Cause Court has given respondent 1 a decree. The petitioner is the legal representative of the decree-holder in C.S. No. 279 of 1921. The question involved in this petition is an important one by no means free from difficulty. It raises a question of general application and I think it is better that instead of deciding it myself it should be heard and decided by a Bench. The petition will accordingly be posted before a Bench.
2. [This petition again coming on for hearing, the Court delivered the following judgment:]
3. This is a petition for the revision of the decree of the Subordinate Judge of Narasapur in Small Cause Suit No. 511 of 1926 on his file.
4. The plaintiff in that suit, one Perraju, who is respondent 1 here, in February 1921 obtained from one Ademma an agreement for the sale of a house to him. Soon after that she died. But on 12th April 1921 her husband as her heir sold the house to Perraju. Defendant 1 in this suit had a money claim against Ademma, and for that he sued Ademma's husband as her legal representative in the Narasapur District Munsifs Court. Having filed his plaint in that suit he obtained an attachment before judgment-on 21st April 1921 of the house which had been sold to Perraju. Later on defendant 1 obtained a decree in his suit. Perraju put in a claim petition objecting to the attachment of the house on the ground that it was his property, not Ademma's property, after the sale to him. That claim petition was dismissed. Then Perraju filed a claim suit and, pending that suit, prayed for an injunction to restrain defendant 1 from bringing the house to sale in execution of his decree against Ademma's estate. Perraju's prayer for an injunction was refused. Then the house was brought to sale in execution of defendant 1's decree and was purchased by defendant 2. Within 30 days after that sale Perraju under protest deposited in Court the amount of the decree and 5 per cent on the amount of the purchase money at the Court auction, purporting to do so under Rule 89, Order 21 of the Code. The Court sale was set aside, and the money deposited was distributed in accordance with the provisions of Rule 89 between defendants 1 and 2. After that had been done Perraju's claim suit went on and ended in a decree in his favour, declaring that the house was his property and was not liable to attachment in execution of defendant l's decree. That decision in favour of Perraju was confirmed on appeal and again on second appeal. After that eventual and complete success in his claim proceedings Perraju instituted this small cause suit for the recovery with interest of the amount which he had paid ostensibly under Rule 89, Order 21. to got the sale of the house in execution of defendant l's decree set aside. The learned Subordinate Judge made a decree in the small cause suit in favour of Perraju for the amount deposited by him with interest, the decree running against defendant l's representatives alone as he found that defendant 2, the auction-purchaser, had been merely a benamidar for defendant 1, who was closely related to him. This revision petition is presented by defendant 3 in the suit, one of defendant l's sons, who was brought on record after defendant l's death.
5. It is contended for the petitioner in revision that Perraju was not competent to make any deposit under Rule 89, Order 21, as he was not one of the persons to whom the rule gives that privilege, and secondly, that at any rate his payment was a voluntary payment and so he has no right to recover it from defendant 1 or his representatives. We have heard long arguments in this case on the correct interpretation of the provisions of Rule 89, Order 21, and on the interpretation of the opening words of the rule, which provide that certain persons may make deposits under it; but I do not think it is necessary on this occasion to deal with those questions. Perhaps I may say that I am not myself satisfied that a third party purchaser, whose title was obtained before the attachment in a case such as this, is not one of the persons entitled to make a deposit under Rule 89.
6. In Dulhiii Mailmra Koer v. Bangsidhari Singh  10 I.C 830 it was decided that such a purchaser did not come within the meaning of the rule, which was to be confined to parsons affected by the sale. There was no very elaborate discussion in that case, and I may remark that a Bench of this Court in Dhanammal v. Veeraraghava Naidu A.I.R.1923 Mad.497, interpreted Rule 89 so as to include such a purchaser. But without going into those questions we can deal with this case sufficiently for our present purpose. Whether Perraju was a person strictly coming within the words of Rule 89, or not, whether the District Munsif was right in accepting his deposit as one made under that rule, the record shows that he made his deposit under protest setting out all the facts and claiming that the house was his and could not be sold in execution of defendant l's decree against Ademma or her estate. The question we have to decide in this petition is not really whether he made that deposit properly under Rule 89, whether he was one of the persons who would come within the meaning of Rule 89, whether the District Munsif was right or wrong in accepting his money as paid under Rule 89, but whether, having paid that money to defendant 1 in the circumstances to avoid the sale of property which has bean found to be not Ademma's but his, he is entitled to recover it under Section 72, Contract Act, as paid under coercion.
7. Now it cannot seriously be disputed that, if Perraju had paid this amount not after the sale in execution had been held, but after the house had been attached and before the sale in order to prevent the sale, he could have recovered it, and payment made to prevent the sale in those circumstances would have been regarded as payment made under coercion within the meaning of Section 72, Contract Act. In 1868, in Fatima Khatoon Chowdrani v. Mahomed Jan Chowdry [1867-69] 12 M.I.A. 65, their Lordships of the Judicial Committee decided that money paid under protest by persons who held a charge upon the property concerned to prevent the sale of that property in execution of a money decree against the owner of the property subject to the charge was not a voluntary payment and could be recovered. In Dulichand v. Ramakishen Singh  7 Cal. 648 in 1881 their Lordships decided that a payment under protest to prevent an execution sale of the plaintiff's property for a mortgage amount not due on the property could not be regarded as a voluntary payment and could be recovered from the decree-holder who was bringing the property to sale in execution, adopting the principle of Valpy v. Manley 1 C.B. 591, in that case.
8. And in Kanhaya Lal v. National Bank of India Ltd. 40 Cal.598 their Lordships decided that a payment made in 1902 under protest by a third party to get rid of an attachment of his property would be an involuntary payment made under coercion within the meaning of Section 72, Contract Act, and that the amount could be recovered. In that case a mill was attached by a decree-holder as if it was the property of his judgment-debtor. A third party, claiming that he and not the judgment-debtor was the owner of the mill, paid the decree amount and then sued to recover it under Section 72, Contract Act. It will be observed that, if he had followed the ordinary procedure in the Code, he would have first put in a claim objecting to the attachment, as he was entitled to do, and on the facts he would have succeeded either in the claim petition or in a suit to pursue his claim. But he chose to pay the decree amount at once in order to get rid of the decree-holder's interference with his right to the mill by attaching it. In that judgment their Lordships say:
A wrongful interference with the plaintiff's lawful enjoyment of his own property is alleged. The plaintiff was clearly entitled to rid himself of that unlawful interference by any lawful means without thereby affecting his right to hold the defendants liable for that which they have thus caused him to do. It is true that paying under protest the sum demanded was not the only course open to him. He might have taken legal proceedings, by which sooner or later he might have rid himself of the interference. But to do so would have involved his submitting to the wrong for all the period necessary for those proceedings to be effective, and that might have been a serious aggravation of the wrong. To this he was in no wise bound to submit. He was free to choose a course which did not involve any such prolongation of the trespass. Accordingly he paid under protest the sum demanded and under English law he was unquestionably entitled to demand a repayment of that sum because it was an involuntary payment produced by coercion, viz., the wrongful interference of the defendants with his full and free enjoyment of his own property. By English law it is not open to the wrongdoer to prescribe by which of two lawful alternatives the injured man puts a slop to the wrong under which he is suffering. His choice of any one alternative does not make it as between him and the wrongdoer a voluntary act, or estop him from claiming that it was done under coercion.
9. It is clear that in this case, though no doubt the attachment of the house did not affect Perraju so disastrously as the attachment of the mill was likely to affect the plaintiff in Kanhaya Lal v. National Bank of India Ltd., Perraju was entitled either to proceed by a claim or to pay off the decree amount before the sale. What is suggested against him is that, although it cannot now be disputed that on the authority of those decisions he could have got rid of the infringement of his rights caused by the attachment of the house by paying off the decree amount before the sale, he could not do so after the sale in any way except by a voluntary act, which would not preserve to him the right to recover the money under Section 72, Contract Act. But, if the attachment of the house was a trespass, an infringement of his rights, surely the sale of the house would only be an aggravation of that infringement. It might have consequences very inconvenient to him, It will be observed that in Dulichand v. Ramkishen Singh, the persons who paid off the decree amount and were held entitled to recover it as an involuntary payment were only paying it in order to avoid a sale under a mortgage decree. There was no question of getting rid of an attachment there; it was only to get rid of the danger of a sale. But they were held to be entitled to recover the money which they paid to avoid the sale. It is urged for the petitioner here that Perraju might well have ignored the sale, which could not really affect his interests, because the purchaser under defendant l's decree could only get his judgment-debtor's right, title and interest, and that Perraju might therefore well have waited until some attempt was made to eject him from the house. But a sale of his house would have been an infringement of his rights even before it had been followed by the purchaser evicting him.
10. It will be noticed that in Fatirna Khatoon v. Mahomed Jan the persons who paid off the decree amount and who were held to have paid it involuntarily under coercion and therefore were entitled to recover it, were only charge holders. That is a rather extreme case, because it might be said that the sale could not affect their charge in any way. But their Lordships of the Privy Council said that a sale might have most mischievous consequences and that they were entitled to pay the decree amount off to prevent that sale and then to represent themselves as having been compelled to do it by legal coercion within the principle now embodied in Section 72, Contract Act. And, if in the execution sale in this case defendant 1 had with permission himself become the auction-purchaser and Perraju had done nothing until defendant 1 came with a delivery warrant to take possession of the house and then Perraju, instead of offering physical obstruction or relying Upon his other legal remedies in order to get the delivery to defendant 1 set aside after it had been made, had paid defendant 1 the decree amount at that stage, I do not see how Perraju could then have been held to have made anything but an involuntary payment, made under coercion within Section 72, Contract Act. I think it must be admitted that, if Perraju had made his payment to defendant 1 in those circumstances, he would have been entitled to recover it as an involuntary payment made to protect his rights. Now, if Perraju could have made this payment before the sale in order to get rid of the attachment; and to prevent the danger of a sale and could have made it at the last stage to prevent the delivery of the house and get rid of the injurious results of the sale to him and in either case would have had a right to he amount, how could it be contended that at any intermediate stage, when the sale had taken place, he could not make the payment with the same effect? The only basis for such a contention would be that at that intermediate stage, whatever might be Perraju's rights at an earlier stage or a later stage, no payment could be made except within the borders of Rule 89.
11. Consistently with the principles in the decisions of the Judicial Committee which I have quoted, I do not see how that position could be maintained. Perraju had a right to this house and had a right to defend his possession and ownership by all lawful means. Paying off the decree-holder and getting the sale set aside, even if that did not come strictly within the words of Rule 89, could not be regarded, I think, as has been suggested, as an unlawful means. As pointed out by the Judicial Committee he had a right to choose his own means, and defendant 1, being the wrongdoer in this case, cannot dictate to him and say that he ought to have adopted some other procedure. In my opinion, without deciding whether Perraju had any right to come to Court within the provisions of Rule 89, Order 21, I have no doubt that he has the right to recover the amount of this decree, which he paid to defendant 1 to avoid the inconvenience of the sale of his own property in execution of defendant l's decree against someone else.
12. The learned Subordinate Judge has given Perraju a decree not only for the recovery of the decree amount deposited by him and interest thereon but also for the return of the 5 per cent deposit for payment to the auction-purchaser; and he has made that decree for both the amounts run against defendant l's representatives on his finding that defendant 1 was really himself the auction-purchaser. It might perhaps have been thought proper that Perraju, though entitled to recover the decree amount from defendant 1, should not recover also in this suit the 5 per cent for the auction-purchaser on the ground that he might well have made his payment a few days earlier, before the attached property had been brought to sale. But I do not think that in this case we need interfere in revision on this minor matter in favour of defendant 1, because it is clear that he was the real auction-purchaser at the execution sale, although ha had got no permission to bid. In these circumstances he does not deserve any special consideration from us.
13. In my opinion this revision petition should be dismissed with costs.
Anantakrishna Ayyar, J.
14. I agree.
15. In execution of the decree in O.S. 279 of 1921, which defendant 1 had obtained against the estate of one Ademma, he proceeded to attach a house. The present plaintiff, Perraju, filed a claim petition, stating that the house belonged to him and not to the estate of Ademma. The orders passed on the claim petition having been adverse to him, he filed an original suit, O.S. No. 232 of 1923, for establishing his title to the house. Pending that suit he applied for a temporary injunction preventing the present defendant 1-the decree-holder in Suit No. 279 of 1921-from proceeding with the sale of the house in execution of that decree. The present defendant 1 having opposed that application, the prayer for temporary injunction was not granted. That was on 8th September 1923, and on that very day the house seems to have been sold and purchased by the present defendant 2. Perraju succeeded in the suit which he filed for establishing his title to the house, not only in the trial Court but also in the appellate Courts to which that litigation was carried. But pending the decision of his suit, No. 232 of 1923, he put in an application, purporting to be under Rule 89, Order 21, Civil P. C, tendering the amount mentioned in the proclamation of sale in O.S. 279 of 1921 and also the 5 per cent mentioned in Rule 89. The sale was set aside; the moneys paid into Court were drawn by the auction-purchaser; and after success in his suit, Perraju has filed the present small cause suit to recover the amount so paid by him into Court. On the finding that defendant 2 is a name-lender, and that the purchase was really for the benefit of defendant .1, the decree-holder in suit O.S. 279 of 1921, the learned Subordinate Judge has given the plaintiff a decree for the amount claimed in his plaint. Defendant 1 having died, one of his sons, brought in as his legal representative, has preferred the present civil revision petition.
16. For the disposal of this revision petition, I do not think it necessary to go into the exact scope of Order 21, Rule 89, Civil P.O. A perusal of the application filed by Perraju in Suit No. 279 of 1921 when making the deposit makes it absolutely clear that, far from acquiescing in the rights put forward by defendant 1 as attaching decree holder, Perraju disputed his right, paid money into Court for the purpose of preventing further 'injury to himself and his property, and made it absolutely clear that
money has been paid into Court under protest, and defendant 1, counter-petitioner, may take the money for the present.
17. The provision of law 'quoted in a petition, under which it is purported to be filed, should not be taken to be conclusive as regards the meaning and scope of the petition, as against the clear words of the petition itself. On these facts, and on the findings, it seems to me that the plaintiff's case comes within the principle of the decisions of the Privy Council, reported in Fatima Khatoon Chowdrani v. Mahomed J an Chowdry, Dulichand v. Ramkishen Singh and Kanhaya Lal v. National Bank of India Ltd. It having been now found that the house did not belong to the judgment-debtor but belonged to the present plaintiff Perraju, the proceedings by way of attachment taken by the present defendant 1 were unwarranted and they constituted a legal injury so far as the real owner, the present plaintiff, was concerned. The real owner's rights being thus infringed, it was open to the real owner to seek any one of the modes by which he could get rid of the inconvenience to him. As pointed out by the Privy Council in Kanhaya Lal v. National Bank of India Ltd., claim proceedings are rather dilatory and may not meet the exact justice of particular cases in time. The Privy Council held that in such circumstances it is open to a person whose rights are infringed by an illegal attachment of his property to pay the money under protest, and that in a suit to recover the same from the person to whom it was paid it could not be said that the payment was 'voluntary.' The finding of the learned Subordinate Judge in the present case that the payment was not voluntary is amply supported by the facts and circumstances in evidence in the case. As I have already said, the petition filed by the present plaintiff when depositing the amount stated in so many words that it was deposited under protest, and it also gave clear information to the present defendant 1 of the steps that the person depositing the money was proposing to take in respect of the matter. If attachment constitutes an infringement of the rights of a real owner, it would be a curious state of the law if the aggravated form of the infringement of that right caused by the subsequent sale of the property would be placing the real owner in a worse position in the matter of exercise of his rights. The Privy Council has remarked that a sale would cause more mischievous consequences to the real owner, and if the contention of the learned advocate for the petitioner (if I understand him rightly in this part of the case) be correct, the real owner's remedy, though it exists when the property is attached, disappears the moment the sale takes place. To test that proposition, I should like to consider what the real owner's position would be when subsequently the auction purchaser takes steps to dispossess the real owner of the property. It could not for a moment be doubted that to avoid this most seriou3 of consequences, dispossession, the real owner would be entitled to pay money under protest and seek the proper remedy to have the same back with any further damages that he might sustain. If that be so, to say that the real owner's rights would be suspended or kept in abeyance, or that the same might even temporarily vanish when once there has been a sale but only to revive and re-appear when steps are taken at the instance of the auction purchaser to dispossess the owner is to say something which is not only not logical but is really contrary to the decisions of the Privy Council in the three cases that I have mentioned.
18. In Fatima Khatoon Chowdrani v. Mahomed Jan Chowdry, Lord Romilly observed at p. 78:
In order to prevent that sale, which would have been mischievous and prejudicial in the highest degree to the rights of the now appellants, they, upon a proceeding which they instituted, and under the authority of the Court, not voluntarily, but under protest, and because they were compelled to take that step in order to prevent the sale of the estate, paid the sum of (money) into Court.... The money that had been paid into Court, not voluntarily, but under this species of compulsion, and for the purpose of preventing this injurious sale of the property, was paid over accordingly.
19. Again, at p. 79:
It was deposited under protest, for the purpose of preventing an injurious sale of the whole property...The depositor has expressly stated : I will bring a regular suit for setting aside the summary order rejecting the claim, but the sale cannot be stayed unless the amount rscoverable by the decree-holder is deposited; therefore deposit the amount for the purpose of its being paid to the deeree-holder and pray that the said sum be paid to the decree-holder and the sale be stayed.
20. In these circumstances, the Privy Council hold that
the payment being clearly no voluntary payment, the suit having been determined on the merits in favour of the appellants, they are clearly entitled to recover this money back.
21. In. Dulichand v Ramkishen Singh (4), at p. 653, their Lordships observed as follows:
The payment was made to prevent the sale which would otherwise inevitably have taken place of the mauzi which the respondents had purchased, and was made therefore under compulsion of law, that is, under force of these execution proceedings. In this country, if the goods of a third person are seized by the sheriff, and are about to be sold as the goods of the defendant and the true owner pays money to protect his goods and prevent the sale, he may bring an action to recover back the money he has so paid; it is the compulsion under which they are about to be sold that makes the payment involuntary:' see Valpy v. Manley.
22. In Kanhayal Lal v. National Bank of India Ltd., the real owner of certain mills was dispossessed by virtue of attachment proceedings taken by the defendant against a stranger. To prevent injury and loss, the plaintiff paid the amount under protest, and the Privy Council held that he was entitled to recover. At p. 609, their Lordships observed:
A wrongful interference with the plaintiff's lawful enjoyment of his own property is alleged. The plaintiff was clearly entitled to rid himself of that unlawful interference by any lawful means without thereby affecting his right to hold the defendants liable for that which they have thus caused him to do. It is true that paying under protest the sum demanded was not the only course open to him. He might have taken legal proceedings, by which sooner or later, he might have rid himself of the interference. But to do so would have involved his submitting to the wrong for all the period necessary for those proceedings to be effective, and that might have been a serious aggravation of the wrong. To this he was in no wise bound to submit. He was free to choose a course which did not involve any such prolongation of the trespass. Accordingly he paid under protest the sum demanded, and under English law he was unquestionably entitled to demand a repayment of that sum, because it was an involuntary payment produced by coercion, viz., the wrongful interference of the defendants with his full and free enjoyment of his own property. By English law it is not open to the wrongdoer to prescribe by which of two lawful alternatives the injured man puts a stop to the wrong under which he is suffering. His choice of any one alternative does not make it as between him and he wrongdoer a voluntary act, or estop him from claiming that it was done under coercion.
23. Finally, they observed at p. 614:
But it is evident that the greater or less probability of a sale taking place does not affect the ratio decidendi of their Lordships in that case: 'Dulichand v. Ramkishen Singh, which is that the payment was made under the force of the execution proceedings, and that in India, as in England, such a payment is regarded by the law as being made under compulsion.
24. On a reading of the application filed by the present plaintiff on 2nd October 1923, it is absolutely clear that though the application was purported to be filed under Order 21, Rule 89, Civil P. C, the whole history of the various proceedings up to that stage was mentioned, that the applicant was the real owner of the property, that the attachment and sale were unwarranted and constituted an injury and a grievance to the applicant, that the applicant tried his best to avoid further injury but was unsuccessful, that the judgment debtor had no right in the property, that the decree-holder's action was entirely unjustifiable, and that the applicant's suit, No. 232 of 1923, for declaring his title to the property was pending. It wound up by saying:
Money is paid under protest. The decree-holder (first counter-petitioner) may take the money for the present.
25. The decree-holder chose to accept money on those terms; he did not choose to object to the application on the ground that it contained conditions which were not agreeable to him or open to the petitioner. In the circumstances, the present case must be held to be governed by the decisions of the Privy Council already quoted, and that the plaintiff is entitled to recover the amount from the defendant, the subsequent litigation having established that the plaintiff's allegations are correct and that the title to the property was in the plaintiff at the date of the attachment.
26. It is not necessary in this case to state what exactly is the scope of Order 21, Rule 89, Civil P. C., because we are not now asked to revise the orders passed under that section.
27. Though the wordings of Order 21, Rule 89, are very general, the question will have to be decided when it properly arises as to whether it governs or covers cases of third persons (owners) whose properties are attached long after they became owners, or whether the rule is applicable only to cases where the right, title and interest in the attached property of persons who apply would be legally affected by the sale if the sale had been confirmed. I need not therefore in this case consider the various decisions quoted, as regards the scope of Order 21, Rule 89, Civil P. C, including a very recant decision of the Privy Council in the case reported in Seth Nanhelal v. Umrao Singh A.I.R.193l P.C.33.
28. It is open to the real owner to prevent further injury to his property in the circumstances. He has got this right under the general law. He could tender such payment to the wrongdoer even outside Court. The circumstance that he made the tender through the Court which was moved to effect the attachment could not really operate to the prejudice of the person making the payment when the payment was accepted by the decree-holder in question. The circumstance that it might not be open to a person whose rights in the property attached would be affected by the sale, to make a conditional tender and payment in Court in execution department, would not affect the rights of persons in the position of plaintiff in the present case. The question whether a stranger, a real owner of properties, could, after making payment to avoid attachment or sale, file a fresh suit to recover the money so paid, had not to be decided either in Dilhin Mathura Koer v. Bhansidhari Singh or Dhanammal v. Veeraraghara Naidu and, as I already remarked, we are not now dealing, by way of direct attack in revision or appeal, with such an order passed under Order 21, Rule 89, Civil P. C.
29. So far as the present plaintiff is concerned, his cause of action is based on the allegation that, when his property was attached wrongfully by the first defendant, and when the same was persisted in spite of his best efforts to have the attachment removed he was compalled to pay the money on protest to avoid the more serious consequences of the sale being completed and further stops being taken. I think that the plaintiff was within his rights is having taken that course, and that it is not open to a person in the position of a. wrongdoer as defendant 1 is in the present case who (without any demur or protest) accepted the plaintiff's money in the circumstances mentioned above, to urge the contentions put forward before us in the present case. I agree that for the disposal of the present revision petition it is not necessary to go beyond the principles laid down in the three Privy Council cases I have mentioned above.
30. As regards the 5 per cent, I assume that prima facie defendant 1 may be taken to be entitled to dispute the plaintiff's rights to get back the same, But we are dealing with this matter in revision, and having regard to the con-duct of defendant 1 and also having regard to the circumstances that this point has not been specifically raised either here or in the lower Court, I do not think this is a case in which we should, in the particular circumstances, interfere on behalf of defendant 1, in respect of that portion of the amount decreed to the plaintiff.
31. I agree that this civil revision petition should be dismissed with costs.