RAMAN RAMANKUTTY Vs. ANTHROSE JOSEPH

JUDGEMENT

(1.) THIS Civil Revision Petition was referred to a Bench by one of us by an order dated 13th November 1950. The order sets out the circumstances under which the revision petition happened to be filed and the only question for decision now is whether the petitioner's inability to comply properly with the provision in o. XXI R. 86 of the Travancore Civil Procedure Code was occasioned by any mistake on the part of the court. Before proceeding to discuss this question it is convenient to quote here the order of reference: "this revision petition raises an interesting question and that is whether a person making an application under O. XXI R. 86 c. P. C. (Travancore) to set aside an execution sale on deposit of due amounts is, when misled into making a short deposit by a report the officer who held the sale made to the Court as to the amount for which the sale was held, entitled to have the mistake treated as one arising out of an act of the court and relief granted accordingly. The court sale was held on 16. 10. 1123 and the present petitioner who took a private sale from the judgment-debtor on 11. 11. 1123 of the property sold in court auction deposited in Court on 12. 11. 1123 the amount which he understood to be the amount mentioned in the Amin's report as the amount for which the decree-holder purchased the property in full satisfaction of the decree debt together with five per cent thereon as enjoined by R. 86. The amount specified in the proclamation of sale as that for the recovery of which the sale was to be held was Fs. 46311/4 and the sale was actually held for that amount. The Amin's report to the Court was however written in such a manner as the sale price could be read as Fs. 41311/4. It was the latter amount together with five per cent of the same that the petitioner deposited on 12. 11. 1123. The fact that there was a short deposit was discovered by him only after the thirty days prescribed had expired and immediately on 17. 11. 1123 he made good the deficit. The Munsiff who heard and disposed of the application took the view that the mistake should be treated as that one arising out of an act of the Court and that the petition should accordingly be allowed. His order to that effect was reversed by the appellate Court and the petitioner has moved this Court in revision. It is settled law that the concerned rule should be construed strictly and that to entitle an applicant to have the sale set aside the deposit should be made within thirty days of the date of the sale. The period of thirty days cannot be extended by the Courts, but when a party litigant is not able to make the deposit in time or is led to make a short deposit on account of the action of the court, Courts always relieve the litigant of the penal consequences of the default, whether the default be to make any deposit at all in time or the deposit made happens to fall short of the requisite amount. It is a vexed question as to what would constitute an act of the Court. Here, admittedly the petitioner did not apply to the Court to fix the amount he had to deposit or even ask for an inspection of the relevant records. The concurrent findings of the Courts below however make it clear that the mistake could very well have happened even if the petitioner had asked for and obtained an inspection of the records. Though earlier decisions take a strict view as to what constitutes an act of the court, in jurisdictions where the rules of the Court enjoin on the Chief Ministerial Officer to ascertain the correctness of the amount tendered before issuing a chellan for depositing the same and when through any mistake on the part of that officer or his subordinates the parties happen to make short deposits relief is granted against the penal consequences of such mistakes, they being treated as the mistakes of the Courts themselves. See a. I. R. 1930 Cal. 249 and A. I. R. 1933 Pat. 515. The report which the Amin made in the present case is one which he is bound by the rules to make and the Courts below have held that the Amin's report is capable of being read that the sale was held for Fs. 41311/4. Further, it unmistakably shows that the decree-holder purchased the property in full satisfaction of his debt. The decision in A. I. R. 1941 Mad. 706 furnishes the nearest approach to the present case on the facts, but that case does not relate to a similar application to set aside an execution sale. As the question raised is important and as no decided case of this, or the Travancore or Cochin High Courts dealing with a similar question has been brought to my notice, I would refer this revision petition for decision by a Division Bench and I order accordingly".

(2.) THE responsibility to find out the correct amount and bring the same to the Court within time is that of the person seeking to have the sale set aside. THEre are no rules of the Court here making any of the ministerial Officers responsible to check the correctness of the amount offered to be deposited under R. 86. In attempting to discharge his responsibility the petitioner followed a course of action which ultimately landed him in trouble and after giving the matter our best consideration we are unable to accept the argument that the failure to comply with the provision of the law to make the full deposit in time was brought about by a mistake of the Court. THE order of reference makes it clear that Courts have always taken the view that as the provision itself is an indulgence to the judgment-debtor, strict compliance with it must be insisted on before relief is given under it. THE responsibility for paying the correct amount lies with the person who seeks to have the sale set aside under this provision. A. I. R. 1947 Mad. 56. THE same view has been taken by the Bombay High Court in A. I. R. 1944 Bom. 233. An earlier Madras case reported in 21 M. L. J. 631 has stated at p. 635 of the report that the provision in S. 310a (corresponding to O. XXI R. 86 of the travancore Code) confers a special right on the judgment-debtor and before he can avail himself of the benefit of the section he must comply strictly with its terms. THE authority followed in that case is a Full Bench decision of the calcutta High Court reported in I. L. R. 26 Cal. 449 which will presently be referred to. THE same view of the Section has been taken by the Travancore and Cochin high Courts. THE decisions in 35 TLR 158 and 17 Coch. L. R. 69 may be referred to as representing the view held by those Courts. Both these cases also rely on the decision in ILR 26 Cal. 449.

(3.) THAT was a much stronger case for the applicant. Here the petitioner without seeking the aid of the court or examining the A diary which is open to the litigant public approached the assistant Bench clerk to get the relevant information. The proclamation of sale showed a much higher amount to be due than that mentioned in the Amin's report which the petitioner happened to refer to and he could very well have known that no payment was since made so as to reduce the amount. Even the sale deed in his favour directed him to deposit a higher amount to satisfy the decree debt. He had in fact applied for a chellan for depositing that amount. These were in our opinion sufficient to put him on enquiry whether the figure mentioned in the amin's report was the true figure. Under the relevant rule the material document is the proclamation of sale. Without referring to it or asking for an inspection of any relevant records if the petitioner omitted to pay the full amount he has, in our opinion done it at his peril.