NANJAPPA GOUNDAN Vs. SREERANGA CHETTIAR

JUDGEMENT

(1.) THE appellant was indebted to the respondent under a deed of mortgage. The appellant applied to the Debt Conciliation Board, Coimbatore, for a settlement of the debt and the Board decided that the appellant should pay to the respondent a sum of Rs. 664. As a result of this direction an agreement was executed by the parties on the 19th August, 1939, whereby it was agreed that the appellant should pay the amount within a period of four months and that if it was not paid within that time the respondent should be at liberty to recover the sum with interest which had accrued thereon and costs by executing the agreement as a decree for the sale of the mortgaged property. Sub -section (2) of Section 14 of the Madras Debt Conciliation Act states that an agreement made under the first subsection (the agreement here was made under that sub -section) shall, within thirty days from the date of the making thereof, be registered under the Indian Registration Act by the chairman of the Board in such manner as may be prescribed and it shall then take effect as if it were a decree of a Civil Court and be executable as such. The agreement was registered and therefore the respondent became entitled to bring the property to sale in the event of the appellant failing to pay what was due to him under the agreement.

(2.) THE appellant failed to pay what was due and consequently the respondent instituted execution proceedings in the Court of the District Munsiff, Coimbatore As the result the property was put up for sale on the 1st February, 1943, and was purchased by the respondent. The appellant applied under Order 21, Rule 90 of the Code of Civil Procedure to have the sale set aside, but he did not proceed with that application. When making the application under Order 21, Rule 90, the appellant paid into Court the amount which he calculated was due to the respondent under the decree. Before the sale was confirmed he asked that that deposit should be treated as a payment under Order 34, Rule 5 of the Code. The District Munsiff held that Order 34, Rule 5 did not apply and this decision was concurred in by the District Judge on appeal. This appeal is from the order of the District Judge.

(3.) IN the judgment of the learned District Judge it is pointed out that the amount deposited is only Rs. 825 whereas the correct amount is Rs. 844 -9 -6. There was no objection taken below to the deficiency in the deposit. The appellant will be allowed to make up the deficiency as the sale had not been confirmed until his application was dismissed by the District Munsiff.