ANKE GOWDA Vs. FATIMA KHATUM

JUDGEMENT

(1.) This revision petition has been filed by judgment-debtor 7 against the order of the Additional Subordinate Judge. Bangalore, con-firming that of the Munsiff, Ramanagaram, rejecting an application made by him under Order 21, Rule 89 of the Civil Procedure Code. The facts leading up to the petition are: four items of immovable property were brought to sale by the decree-holders in execution of their mortgage decree. The petitioner who was an alienee of item l was defendant 7 in the case. All the four items were ordered to be sold on 17-5 1949. Before the sale the petitioner filed an application and obtained an order that items 2 to 4 of the mortgaged properties might be sold in the first instance and for the balance of the decree amount, if any, item l in which he was interested might then be sold. Accordingly on the same day items 2 to 4 were sold in the first instance for Rs. 320 in the aggregate and item 1 was sold later for Rs. 410. The amount mentioned in the sale proclamation was Rs. 708 5 0. Respondent 12 purchased all the properties in the court sale held on 17-5-49. On 14 6-49 the petitioner filed an application for cancellation of the sale only of item 1 after depositing into Court as 410 being the price which it had fetched at the sale plus Rs. 21-4-0 being 5% of that purchase money. That application was dismissed by both the Munsiff and the Sub-ordinate Judge. Hence this revision.

(2.) Mr. M.P. Somasekhara Rau, learned counsel for the petitioner, contends that the deposit which has been made by the petitioner is quite sufficient for the purposes of Order 21, Rule 89, Civil P. C., to set aside the sale of item 1. He argues that the amount for which the other items were sold had already been deposited in Court by the purchaser and as the sales of those items had not been questioned by anybody those sales were bound to be confirmed and the purchase money of those items was bound to be paid to the decree-holders and was as a matter of fact paid to the decree holders after those sales were formally confirmed. There is no doubt that those amounts together with the amount deposited by the petitioner are quite sufficient to cover the amounts required under Order 21, Rule 89, Civil P. C. But the question is as to whether the petitioner has complied with the conditions imposed on him under Order 21, Rule 89 to obtain the benefit of that provision.

(3.) The relief to be granted under Order 21, Rule 89 is in the nature of a special indulgence and there is no doubt that the person seeking such indulgence should strictly conform to its requirements; see 3 Mys. L. Jour. 254. Order 21, Rule 89 requires that the person applying to have the sale set aside under that rule should deposit in Court for payment to the purchaser a sum equal to 5% of the purchase money and for payment to the decree holder an amount specified in the proclamation of sale, less any amount which may since the date of proclamation of sale have been received by the decree-holder. The short point for decision in this case is whether it could be said that the decree-holders have since the date of proclamation of sale received the amount which had been brought into Court as a result of the sale of the other items. On the plain reading of the section, that contention does not appear to be reasonable. It has been held so far back as in 1899 in 23 Bom. 723, where the facts were similar to those of the present case, that the mere payment of the sale-proceeds into Court was not a sufficient compliance with the requirements of Section 310(a), Civil P. C. (corresponding to Rule 89 of Order 21) and as it had not been shown that the sale-proceeds had been received by the decree-holder the sale could not be set aside. It was observed that the rule contemplates the actual receipt of the amount by the decree-holder and that a mere payment of the sale proceeds into Court does not satisfy the requirements of the section. That case has been followed in Totaram v. Chhotu, A. I. R. (10) 1923 Bom. 299 (2) where Macleod C. J. and Crump J. held that as long as the legislature had decided that only money received by the decree-holder can be taken into account, the Court cannot say that money paid into Court and not put into the pocket of the decree-holder is money received by him. In Karunakara Menon v. Krishna Menon, 39 Mad. 489, where 23 Bom. 723 and Kripa Nath Pal v. Bam Lakshmi Dasya, 1 Cal. W. N. 703 were followed, it was pointed out that Order 21, Rule 89, Civil P. C. is in the nature of an indulgence to the judgment-debtors and that its provisions should strictly be complied with, and the applicant cannot take credit for any amounts paid by co-judgment-debtors who have not joined him in the application and that such credit could be taken only for any amount that may have been actually or constructively received by the decree-holder and not for sums which having been deposited could have been received by him had he been minded so to do. This case has been followed in K. Subbayyar v. Muthayyar, A. I. R. (9) 1922 Mad 54 (1).