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Upendra Nath Roy Chowdhury Vs. Bhudeb Chandra Roy Chowdhury and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in25Ind.Cas.859
AppellantUpendra Nath Roy Chowdhury
RespondentBhudeb Chandra Roy Chowdhury and anr.
Cases ReferredNafar Chandra Pal Chowdhury v. Gopal Chandra Mukerjee
Excerpt:
sale, auction - deposit of purchase-money --decree-holder, whether bound to withdraw before confirmation of sale--interest, up to what date allowable. - 1. the only question in controversy in this appeal between the judgment-debtor-appellant and the decree-holders-respondents, relates to the period for which the appellant is liable to pay interest under the mortgage decree obtained on the 29th may 1907 by the respondents. the decree states that after the lapse of the date fixed for the payment of the judgment-debt, the decretal amount will bear interest at the rate of six per cent, per annum till the date of realisation. in execution of this decree the mortgaged properties were sold on the 14th july 1909. the earnest money was deposited by the purchaser on that date and the balance was brought into court on the 3rd august 1909. on the 13th august the judgment-debtor applied to have the sale set aside on the grounds mentioned in rule 90 of.....
Judgment:

1. The only question in controversy in this appeal between the judgment-debtor-appellant and the decree-holders-respondents, relates to the period for which the appellant is liable to pay interest under the mortgage decree obtained on the 29th May 1907 by the respondents. The decree states that after the lapse of the date fixed for the payment of the judgment-debt, the decretal amount will bear interest at the rate of six per cent, per annum till the date of realisation. In execution of this decree the mortgaged properties were sold on the 14th July 1909. The earnest money was deposited by the purchaser on that date and the balance was brought into Court on the 3rd August 1909. On the 13th August the judgment-debtor applied to have the sale set aside on the grounds mentioned in Rule 90 of Order XXI of the Code of 1908. Four months later, on the 13th December, the judgment-debtor withdrew his application for reversal of the sale. The result was that the sale was confirmed.

2. The decree-holders contend that they are entitled to interest up to the 13th December 1909 when they were placed in a position to appropriate the sale-proceeds in satisfaction of their decree. This argument has found favour with the Court below. On behalf of the judgment-debtor it has been argued in this Court that this view is erroneous and that, as under Section 65 of the Code of Civil Procedure the title vests in the purchaser from the date of sale, the decree-holders are entitled to interest only up to that date. This view, however, cannot be seriously maintained, for the entire purchase-money was not brought into Court till the 3rd August 1909, that is, nearly three weeks after the date of sale. It has next been contend- ed that the interest should be allowed to run at most up to the date when the entire purchase-money was realised, because, it is said, it became then open to the decree-holders to withdraw the money in satisfaction of their decree. In support of this proposition reliance has been placed upon the cases of Jogendra Nath Sircar v. Gobind Chunder Addi 12 C. 252 and Vishvanath v. Virchand 6 B. 16 and reference has also been made to the cases of Rama-nathan Chettiar v. Subramania Sastrial 26 M. 179 and Manilal v. Nanabhai 28 B. 264 : 6 Bom. L.R. 11. The three cases last mentioned have no bearing upon the question for decision, and the case upon which special stress has been laid, namely, Jogendra Nath Sircar v. Gobind Chunder Addi 12 C. 252, does not formulate an inflexible rule of law that the decree-holder is bound to withdraw the sale-proceeds from the Court as soon as the entire purchase-money has been deposited. The decisions on this subject were reviewed in this Court in the case of Benode Lal Bandopadhya v. Srikristo Chucherbutty 8 Ind. Cas. 4 : 15 C.W.N. 783, where it was pointed out that although it may be open to the Court to distribute the sale-proceeds amongst the claimants before the sale has been confirmed, it is not obligatory upon the Court to distribute it then nor is the sum distributable then as a matter of course. It was added that an order-for distribution should not ordinarily be made before the confirmation of the sale. In the case before us, what is the position of the parties? At the instance of the decree-holders, the mortgaged properties were sold and were converted into money for the purpose of satisfaction of the judgment-debt. The entire money was brought into Court by the purchaser on the 3rd August 1909. In one sense the money, at that time, became, in theory, available for the satisfaction of the debt, but the judgment-debtor on the 13th August 1909 raised the question of the validity of the sale. It was undoubtedly not obligatory upon the decree-holders to withdraw the sum in satisfaction of their decree with the possible contingency that if the application of the judgment-debtors succeeded, they would be compelled to bring back the money into Court with interest. No decree-holder is bound to withdraw the money under such circumstances in satisfaction of the decree, a satisfaction which may subsequently be nullified at the instance of the judgment-debtor. Indeed if the decree-holders had applied to withdraw the money before the disposal of the objections to the sale, the Court would doubtless have properly refused the application. As was pointed out in the case of Benode Lall Bandopadhya v. Srikristo Chucherbutty 8 Ind. Cas. 4 : 15 C.W.N. 783, when the mortgagor applied for reversal of the sale on the ground of irregularity and fraud, he challenged the validity of the sale, and this made it practically impossible for the decree-holders to ask for distribution of the sale-proceeds till those proceedings had terminated. If the sum realised by the sale be treated as the property of the judgment-debtor which he tendered to the decree-holder in satisfaction of his debt, the tender here was conditional and consequently of an illusory character. The decree-holders could not be expected to take the money on condition that they would refund the same to the purchaser if the sale was reversed at the instance of the judgment-debtor. This view is also supported by the decision in Nafar Chandra Pal Chowdhury v. Gopal Chandra Mukerjee 22 Ind. Cas. 946 : 19 C.L.J. 358. In fact the case before us is of a much stronger description. In that case, the confirmation of sale was delayed by reason of a dispute between two rival bidders as to who was entitled to have the sale confirmed in his favour. The judgment-debtor was in no way responsible for the delay caused, and yet it was held that the decree-holders were entitled to interest up to the date of confirmation of sale when the money became really available for the satisfaction of the debt. In the case before us, the confirmation of the sale was delayed by reason of the application of the judgment-debtor which remained pending for four months and was then withdrawn by him. If the decree-holders were deprived of interest under the decree by reason of such action on the part of the judgment-debtor, they would be subjected to great hardship for no fault attributable to them.

3. We are clearly of opinion that the order made by the Subordinate Judge must be confirmed and this appeal dismissed with costs. We assess the hearing fee at three gold mohurs.


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