AROKIASAMY Vs. MARTIAL MARGARET

JUDGEMENT

(1.) The defendants are the appellants. The suit was filed by the plaintiff-respondent for the recovery of a sum of Rs. 3,3N. The facts leading to the filing at the suit are as follows.: - The defendants as decree-holders brought certain , properties of one Dhanalakshmi Ammal, wife of Govindachari and others, who were the Judgment-debtors, -to sale in E. P 172 of 1972 on the file of the - learned additional Subordinate Judge, Pondichary .The plaintiff was the successful auction purchaser and on 1-11-197 the date education, he deposited one-fourth at the sale proceeds of Ra 35,100. He had also remitted the balance of consideration and also non-judicial stamp papers for the issue of a sale certificate. Better the sale could be confirmed, the judgment debtors filed K A. No. 492 4 19M under O. 21, R 90, C. P. C. to set aside the sale on the ground of material irregularities and fraud, in publishing the proclamation, of sale and in the conduct of the sale, By an order dated 3-8-1974, the learned Additional Subordinate Judge, Pondicherry, held that there was no mention of the place of auction sale In the proclamation, that though there was no encumbrance on the property a discharged mortgage was shown as an encumbrance, that there was only one bidder, who was the plaintiff in this case and he Is also a relative of the decree-holder and that the sale is vitiated by material irregularities in the proclamation of the sale and in the conduct of the sale, and in that view, the learned Subordinate judge set as if the sale held on 1-11-1973, but on condition, that the judgment-debtor deposited an amount equal to the amount of sale proceeds in court on or- before 7-8-1974. The judgment-debtor accordingly deposited the money and the sale was set aside. While refunding the sale proceeds deposited in court, a sum of Rupees 1,083, was , deducted towards poundage and only the balance of Rupees 34,017 was paid back to the auction purchaser an 27-11-1974. In this stilt, the plaintiff claimed that be is entitled to recover this poundage of Rupees 1,083. He has also claimed that he is entitled to interest at 6 per cent per annum on Rs. 35,100 from 1-11-1973 the date of deposit to 27-11-1974, he was paid the sum of Rs. 34,017. This interest come to be. 2,256, and the interest added to the pound1age came to Rs. 3,339/- for which this present suit has been filed. The plaintiffs case was that the sale was set as the due to irregularities and fraud committed by the decree-holder, that for no fault of his, he has been made to pay the poundage and also to suffer the loss by way of loss of interest and that therefore, he is entitled to recover the money claimed in the suit. The defendants contended that the sale was set aside because the proclamation was not In accordance with law and that there was also a misstatement of an encumbrance in the proclamation and that the decree-holder was responsible for all the irregularities. in fact, that was the view taken by the executing court while setting aside the sale. The courts below also held that the plaintiff is entitled to recover the poundage as also the interest and the suit is -maintainable. Accordingly the suit was decreed and the appeal filed there against was also dismissed.

(2.) In this second appeal, the learned counsel for the appellant contended that the suit for recovery of the poundage or for recovery of any interest is not maintainable. The first ground on which the learned counsel submitted that the suit is not maintainable was that under O. 21, R. 93, C. P. C., only the executing court can direct refund of the money with or without interest, subject to the limitations as to the liability of the person to pay interest as provided in that rule itself. In fact, according to the learned counsel, but for the provision in R. 93, a court auction purchaser would- not have been entitled to get refund of even the purchase money paid by him on setting aside the sale. Rule 93 of O. 21, C. P. C. reads as follows -

(3.) Learned counsel for the appellant argued on the basis of a Full Bench of five Judges of Andhra Pradesh High Court, reported in Suryakantharnma v.Dorayya, that this view of the Full Bench requires reconsideration . Apart from the fact that I am not convinced of the point raised by the learned counsel for re consideration and I am bound by the decision of Full Bench of this court rather than the decision of Andhra Pradesh High Court and which was partly decided in the Full Bench of this court relating to the right of the auction purchaser to file a suit for recovery of the purchase money when in a different proceeding it was held that the judgment-debtor has no saleable interest does not arise for consideration in this suit. The decision in Parvathiammal v.Govindasami Pillai, (1916) ILR 39 Mad 803 : (AIR 1916 Mad 290 (2)) is the decision directly on the point. This judgment in Parvathiammal v.Govindasami Pillai (1916) 39 Mal 803 was also quoted with approval in the decision of the Full Bench in Macha Koundanv. Kottara Koundan, AIR 1936 Mad 50, in respect of that aspect of the case relating to right to file a suit for recovery of poundage and interest, No decision of reconsideration this court, or any other court has taken any different view on this question ' -Therefore, there are no grounds for referring the matter to a fuller Bench.