BAPPU PAREED Vs. KERALA FINANCIAL CORPN

JUDGEMENT

(1.) The matter arises in execution. The appellant herein as petitioner filed E.A. No. 201 of 1984 in E.P. No. 125 of 1982 in S.F.C.O.P. No. 498 of 1980 under O.XXI, R.89, C.P.C. to set aside the sale on deposit. The appellant-petitioner before the lower Court claims to have obtained the possession of the property, item No. 11 of Schedule 'B' of the sale proclamation, 1 acre 29.125 cents in Sy. No. 13/2C/2/2 of Vaduthala Mattathibhagom Village in Shertallai Taluk. The first respondent is the decree-holder in S.F.C.O.P. No. 498 of 1980. Respondents 2 to 6 are the judgement-debtors. The 7th respondent is the Court auction-purchaser of the property in which the appellant is interested. All the 4 items of properties sold by Court on 3-12-1984, are equally liable for the decree debt. Two items of properties were purchased by the decree-holder for a sum of Rs. 2,25,000/-. The 7th respondent purchased another item of property for a sum of Rs. 1,00,100/-. The instant item was purchased by respondent 7 for Rs. 40,100/-. The appellant-petitioner in the lower Court deposited a sum of Rs. 40,100/- for item No. 11 in the B Schedule plus 5% commission due to the auction purchaser, coming to Rs. 2,005/-, thus totalling to Rs. 42,105/-. The total amount due as per the decree and the sale proclamation is Rs. 3,97,850/-, out of which the decree-holder purchased two items of properties for Rs. 2,25,000/-, the 7th respondent-purchased one other item for Rs. 1,00,100/- and he himself purchased the instant item in which the appellant is interested for Rs. 40,100/-. The total amount thus realised by sale of all the four items was Rs. 3,65,200/-, leaving a sum of Rs. 32,650/- to be realised yet. Since the date of decree or the proclamation, no amount was paid towards the decree debt. The Court below held that the deposit of Rs. 42,105/- by the applicant, on the facts, has failed to comply with the provisions of O.XXI, R.89, C.P.C. The application filed by the appellant was dismissed by order dated 9-7-1985. The petitioner in the Court below has come up in appeal.

(2.) We heard counsel for the appellant, Mr. S.V.S. Ayyar, counsel for the Ist respondent-Corporation, Mr. Mathews P. Mathew and counsel for the auction purchaser (7th respondent) M/s. K.R. Kurup and M. Rajagopalan. It is conceded that a balance of Rs. 32,650/- is still due to the decree-holder out of the amount specified in the proclamation of sale. It is common ground that all the 4 items of properties were proclaimed and sold separately. The appellant's counsel contended that he need not deposit more than the purchase price of Rs. 40,100/- plus S% commission, totalling to Rs. 42,105/- which has admittedly being done. The Court below was in error in holding that the appellant should deposit a further sum of Rs. 32,650/- which still remains as the balance due to the decree-holder in order to satisfy the requirements of O.XXI, R.89, C.P.C. According to the appellant's counsel, the provisions of O.XXI, R.89, C.P.C. as it obtained in Kerala before the amendment by Act 104 of 1976, should apply. According to him, the said provision is consistent with the provisions of the C.P.C. as amended by Act 104 of 1976.

(3.) We shall extract the provisions of O.XXI, R.189, C.P.C., along with the provisions as it obtained in Kerala before the C.P.C. Amendment Act 104 of 1976 :