1. Second appeal by defendants against the decree of the Court of the Additional Subordinate Judge of Coimbatore in A.S. No. 11 of 1922 (A.S. No. 44 of 1922, on the file of the District Court). The facts giving rise to this second appeal are these: The defendants instituted a suit against the plaintiffs on foot of a hypothecation bond, and obtained a preliminary decree for Rs. 1,530-2-8 on 26-7-18. The plaintiffs applied to have the decree set aside and it was set aside with the consent of the defendants on the plaintiffs depositing into Court the full decree amount inclusive of costs. The suit was reheard and a revised preliminary decree was passed on 15-3-19. Against this decree the plaintiffs appealed and the appeal was dismissed on 20-10-1919. Thereupon the defendants applied to have a final decree passed, and this was done on 25-11-1919. In pursuance of this decree the mortgaged properties were sold on 8-3-20 and realized a sum of Rs. 1,010, The amount due under the final decree was Rs. 1,634-3-4 with subsequent interest and costs and giving credit for Rs. 1,010 the defendants applied for a personal decree against the plaintiffs for the balance and attached the amount that had been deposited in Court when the first preliminary decree was set aside. The plaintiffs received notice of this application on 12-6-20 and instituted the suit from which this second appeal arises on 12-7-1920 for a declaration that the final decree and all subsequent execution proceedings were null and void and not binding on them.
2. The allegation on which this relief was sought are to be found in paragraphs 10, 11 and 12 of the plaint. They are to the effect:
that they (plaintiffs) wore kept in the dark about the proceedings relating to the passing of the final decree, that the present defendants so contrived that no notice was personally served on them in those proceedings, that the mortgaged properties which were worth not less than Rs. 3,500 were sold for a shockingly low price of Rs. 1,010, that there was no publication at all of the sale proclamation in the village, that the valuation given in the sale proclamation as also the upset price fixed were too low ; and that the decree amount having been already deposited in Court, there was no necessity at all for further proceedings by the defendants and that the conduct of the defendants in applying for a final decree for the entire amount behind the back of the plaintiffs and ignoring the Court deposit was highly, improper and fraudulent.
3. The defendants traversed all the allegations in the plaint and also contended that the suit was not sustainable and that the remedy of the plaintiffs, if any was under Order 21, Rule 90, Civil P.C., as also under Order 9, Rule 13. No oral evidence was adduced before the District Munsif, and, on the documentary evidence placed before him he came to the conclusion that no separate suit lay for the relief claimed and that the defendants were not bound to give credit for the amount which have been deposited when the first preliminary decree was set aside. On appeal the learned Subordinate Judge held that the defendants were bound to give credit for the amount in deposit, that they have failed to do so; and that their conduct in getting a final decree passed for the entire sum due was fraudulent; and relying upon a decision in Hasem Ali Khundahar v. Abdul Goffur Khan 8 C.W.N. 102 he reversed the decree of the first Court and passed a decree for the plaintiff's.
4. It was contended before me that this finding was wrong and the question to be considered therefore is, whether the defendants were bound to give credit for the sum of Rs. 1,530-2-8 which was deposited in Court by the plaintiffs on 4-9-1918 and whether they were entitled only to have a final decree passed for the balance.
5. The Civil Procedure Code provides for payment into Court before decree and after decree and the provisions relating to payment into Court before decree are contained in Order 24. Order 21, Rule 1 provides for payment into Court after decree. In the present case the amount of Rs. 1,530-2-8 was not paid into Court under either of these provisions and the payment was made under Order 9, Rule 13. It was contended that inasmuch as the payment was made and the ex-parte decree was set aside with the consent of the defendants it must be taken that they consented to the amount going in discharge of any decree that would ultimately be passed in the suit. This contention appears to me to be untenable because, had there been any such understanding the revised preliminary decree ought only to have been passed for Rs. 1,634 minus Rs. 1,530-2-8 and not for Rs. 1,634. The plaintiffs appealed against the revised preliminary decree, and no contention to this effect was taken in the grounds of appeal. The revised preliminary decree having been for the sum of Rs. 1,634 and this decree having been confirmed in appeal, the defendants applied under Order 34, Rule 5, Civil P.C., for having a final decree for sale passed.
6. This rule enacts that if the amount declared to be due under the preliminary decree was not paid into Court, the Court was bound to pass a final decree for sale. The ruling in 8 C.W.N. 102 has no application because, in that case the money was actually paid into the hands of the decree-holder outside the Court and having received the money it was incumbent upon him when applying for the final decree to give credit for the amount he had received. There was no such payment in the present case, and, as observed in Singa Raja v. Pothu Raja  42 Mad. 61 Order 34, Rule 5, Civil P.C. recognized only one method of payment into Court under the preliminary decree and no such payment having been made, the Court was bound on the application of the decree-holder to pass a final decree for sale.
7. It was urged that the defendants were bound to have brought to the notice of the Court when the final decree was passed, that there was in deposit Rs. 1,530 and odd, but I fail to see how any such legal duty was cast on them. It may be stated that it was equally open to the plaintiffs after the appeal had been dismissed, to apply to the Court to have the amount they had deposited appropriated towards the sum decreed under the revised preliminary decree. In any event it does not appear to me that the conduct of the defendants amounted to a legal fraud. In my experience when money is deposited under Order 9, Rule 13 and the ex-parte decree is set aside, the decree which is passed after a fresh trial is always for the full amount claimed and not for the full amount claimed less the amount deposited. It is only when payment is made under Order 24 that a decree is passed after giving credit for the amount deposited. In the case of deposits under Order 9, Rule 13, what is done is to add a note to the decree to the effect that it is open to the plaintiff to draw the amount in deposit and that he is to execute the decree only for the balance.
8. For all these reasons it appears to me that the finding of the learned Subordinate Judge cannot be supported. This view of mine is not by itself sufficient to dispose of the appeal because, the other allegations made in paragraphs 10 and 11 of the plaint to the effect that the defendants fraudulently contrived to keep the plaintiffs in the dark with regard to the proceeding leading to the passing of the final decree and that they have caused a false endorsement of service to be made on the summons, were net gone into by the Court of first instance. The acts referred to in paragraphs 10 and 11 of the plaint may amount to legal fraud and in that case a separate suit to set aside the final decree would lie.
9. I, therefore, call for a finding from the lower appellate Court on the following issue:
Are the allegations made in paragraphs 10 and 11 of the plaintiff and were the defendants guilty of fraud and if so was the final decree and the sale that allowed vitiated by fraud
10. The finding will be submitted in six weeks from the date on which the records are received in the lower appellate Court, and the lower appellate Court will receive such evidence as is adduced by the parties. Ten days for objections after the receipt of finding from the lower appellate Court.