M HSHIVAJI RAO Vs. NIRANJANAIAH AND

JUDGEMENT

(1.) This is an appeal by the judgment- debtor in Examine. Case No. 117/55 on the file of the Subordinate Judge, Mysore. In the said execution case the judgment- debtor entered into an arrangement with the decree- holder by which he executed a mortgage for the amount due under the decree. Thereafter the judgment- debtor deposited Rs. 80/- being the five percent of the sale price in Court and made an application the decree-holder admitted that the amount of the decree had been satisfied in the manner indicated as above. The application was, however, opposed by the decree- holder should be deposited in cash. In other words, his contention was that where the decree has been adjusted in the manner as indicated above the case does not come under Order 21, Rule 89.

(2.) The Subordinate Judge, following two decisions, i.e. Venkataswami v. Chayapathi, 2 Mys LJ 31 and Rabindra Nath v. Harendra Kumar, AIR1956 Cal 462 held that the amount due to the decree- holder need not be actually deposited but if the decree- holder's claim is otherwise settled, then the judgment- debtor is entitled to make an application by merely depositing five percent of the purchase-money which was the solatium for the auction- purchaser. On this view of the matter, the Subordinate Judge allowed the application. On, appeal , the lower appellate Court, relying on a decision of the Privy Council reported in Nanhelal v. Umrao Singh, AIR 1933 PC 33 reversed the decision of the Subordinate Judge. Hence the present appeal.

(3.) Mr. Somasekhara Rau appearing for the judgment- debtor contended before us that the decision of the Privy Council on which the lower appellate Court's judgment was based is distinguishable from the present case. He contended that in the said case their Lordships of the Privy Council did not go into the question, which arises in this appeal, as no application was made therein under Order 21, Rule 89. What, according to him, their Lordship of the Judicial Committee held was that after the sale has taken place there cannot be an adjustment of the decree as contemplated in O.21, Rule 2 of the Code of Civil Procedure. Their Lordship, Mr. Somasekhara Rau urged, did not go into the question as to whether or not an application under Order 21, Rule 89 can be made in the circumstances of the present case.