GOPALAN Vs. AMMUKUTTY AMMA

JUDGEMENT

(1.) This second appeal relates to a matter in execution. Respondent 3 is the assignee of a decree obtained by a subscriber in a chitty for paid up subscriptions due from the foreman. Under the decree, the decree amount is recoverable from the defendant (i.e. the foreman) and the decree schedule properties. The defendant died after the decree, and his son, respondent 3 was impleaded in execution as his legal representative. Respondent 3 also has died after the institution of this appeal, and his legal representatives are additional respondents 4 to 10. There are twenty-four items of properties in the decree schedule. Decree schedule items 5 and 13 were sold in execution on 11.12.1950, each for Rs. 100, and part of decree schedule item 22 was sold in execution on 11.1.1951 for Rs. 1250 which was the balance decree debt subsisting after the sale of items 5 and 13. On 10.2.1951 respondent 1, whose deceased husband had, even before the court sale, purchased the property sold on 11.1.1951, applied under O.21 R.89 C.P.C. for setting aside the court sale of 11.1.1951, depositing in court five per cent of the purchase money for payment to the auction purchaser and also the whole of the balance decree amount subsisting after the sale of items 5 and 13 for payment to the decree holder. The execution court allowed this application and set aside the sale on 3.7.1951. Subsequently, on account of applications for rateable distribution made by certain persons who claimed that they were also subscribers in the same chitty and had obtained decrees which were also charged on the decree schedule properties in this case, the execution court rateably distributed the amount which respondent 1 had deposited under O.21 R.89(1)(b) for payment to the decree holder, and consequently respondent 2 was not able to receive from court the full amount of the balance decree debt due to him. For recovering the balance due to him after receipt of the amount he got by the rateable distribution he again brought to sale the properties sold on 11.1.1951, and the properties were again purchased by the person who had purchased it at the first court sale on 11.1.1951. After the second sale respondent 1 applied on 24.10.1951 for having that sale set aside on the ground that as she had already paid the balance decree debt when she applied to have the first sale set aside under O.21 R.89 the property was not liable to be sold again in execution of the same decree. This application was opposed by the auction purchaser. But the execution court overruled his objections and set aside the sale. As the appeal which he filed against the execution courts order was also dismissed by the lower appellate court, the auction purchaser has brought this second appeal.

(2.) Sub-r. (1) of O.21 R.89 C.P.C. reads:-

(3.) But it is contended by the appellant that, although respondent 1 had deposited in court the whole of the balance decree amount due on the date of sale, the decree holder was not able to get that amount on account of the rateable distribution of the amount between himself and other judgment creditors of the defendant, and that, therefore, the decree could be deemed to have been extinguished only to the extent of the amount actually paid to him as per the order for rateable distribution and he was entitled to sell the property once again for realisation of the balance amount due to him after the receipt of his share in the rateable distribution. There is a conflict of authorities as to whether in the case of simple money decrees, the amount deposited under Clause.(b) of sub-r. (1) of O.21 R.89 can be rateably distributed between the holder of the decree in execution of which the property has been sold and other decree holders who have applied for rateable distribution or whether it has to be held solely for the benefit of the holder of the decree in execution of which the property has been sold. It is, however, unnecessary to consider here the reported decisions on that point since the decree in this case is a mortgage decree. Proceedings in pursuance of applications under O.21 R.89 proceed on the footing that the execution sale is not affected by fraud and other vitiating circumstances and is valid and binding on the property. From sub-r. (2) of O.21 R.89 it is clear that an application under R.89 can be maintained only if the applicant accepts the sale as a valid and binding one. That sub-rule provides:-