SUBRAMONIA IYER Vs. SANKARAN UNNI

JUDGEMENT

(1.) The assignee decree holder in O.S. No. 20 of 1115 of the Trichur District Court is the revision petitioner. The revision petition is from an order in execution allowing rateable distribution under S.73 of the Code of Civil Procedure. The decree in this case was obtained against one Govinda Menon, who died and whose legal representatives are counter petitioners 2 to 14. The first counter petitioner had obtained a decree against Govinda Menon in O.S.No.47 of 1939 of the District Munsiff's Court of Palghat. The assignee decree holder in O.S. No. 20 of 1115 attached the properties of Govinda Menon and brought them to sale. The sale took place on 28-6-1124 and the properties were purchased by one Sadasiva Iyer for Rs. 1700/-. He deposited the whole purchase money in court on the date of sale. The decree holder in another decree obtained against Govinda Menon, namely O.S. No.62 of 1112 of the Anjikaimal District Court, had applied for execution of his decree before the date of the sale in O.S. 20/15. He also put in a petition on 26-7-1124 for setting aside the sale. That petition was, however, dismissed on 17-8-1124. The first counter petitioner filed an execution petition in the Trichur District Court on 8-7-1124 after getting his decree transferred to that court in which he claimed rateable distribution of the assets realised by the auction sale, in O.S. No. 20 of 1115. He also put in a petition on 17-8-1124 for setting aside the auction sale. That petition is still pending. The petition for rateable distribution was opposed by the assignee decree holder in O. S.No.20 of 1115 on the ground that it was presented after the receipt of assets by the Court. This contention was repelled by the learned District Judge who held that the decree holder in O.S. No. 47 of 1939 was entitled to share in the distribution of the assets. On the authority of a Single Bench decision of the Judicial Commissioner's Court of Peshawar in Makhan Singh v. Moti Ram (AIR 1936 Peshawar 164) the learned Judge held that the assets could be deemed to have been received by the court only on the loth day after the auction sale since the auction purchaser had time till then to deposit 75 per cent of the purchase money after depositing 25 per cent on the date of sale. It was also held in that case that until after the sale was confirmed it could not be said that the assets were received by the court. This view also was accepted by the learned District Judge.

(2.) The question for consideration in the revision petition is whether in this case the assets can be said to have been received by the court before the first counter petitioner applied for execution of his decree in the Trichur District Court. S.73(1) of the Code of Civil Procedure provides thus:-

(3.) One of the reasons given by the learned District Judge for holding that the assets cannot be held to have been received by the court when the purchase money was deposited by the auction purchaser is that the auction purchaser was bound to deposit only 25 per cent of the purchase money on the date of sale and that the balance 75 per cent could be deposited within 15 days from the date of sale as provided in O.21 R.84 and R.86 of the Code of Civil Procedure. But R.85 is only an enabling provision and there is nothing to prevent the auction purchaser from depositing the whole purchase money on the date of sale itself. R.86 reads thus:-