FATEH SINGH Vs. RAMESHWAR PRASAD BAGLA

JUDGEMENT

(1.) This is an appeal by a judgment-debtor against an order in execution proceedings refusing to set aside a sale under Order 21, Rule 89 of the Code of Civil Procedure, The facts briefly stated are as follows.

(2.) There was a decree against the appellant as also respondents Nos. 17, 18 and 19--respondents Nos. 18 and 19 being minors--in favour of several decree-holders, some of whom were minors for a sum of Rs. 1,61,000. In execution of the decree certain immovable property belonging to the judgment-debtors was put up for sale on the 19th October, 1949, and was sold to Rameshwar Prasad Bagla, respondent No. 1, for a sum of Rs. 2,81,000. The execution application had been made by some of the decree-holders, viz., by plaintiffs Nos. 2 to 7--plaintiffs Nos. 6 and 7 being minors. There were several other decree-holders including some minors who had not joined in the execution application, and therefore the application had been made for the benefit of all the decree-holders. After the sale, but before its confirmation, i.e., on the 17th November, 1949, the judgment-debtors sold the mortgaged property in favour of four of the decree-holders Nos. 2 to 5 only for a sum of Rs. 3,20,000. Out of the sale-consideration Rs. 1,61,081-14-0 were set off towards the decretal amount and a sum of Rs. 38,918-2-0 was paid to the judgment-debtor in cash. The balance of Rs. 1,20,000 was agreed to be paid in three equal yearly instalments. A receipt was executed by decree-holder No. 3 and by one Har Prasad, special attorney on behalf of all the decree-holders, whereby the entire amount of the decree was admitted to have been received by the decree-holders. On the 18th November, 1949, the judgment-debtors applied to the Court under Order 21, Rule 89 of the Code of Civil Procedure for setting aside the sale. They filed the receipt though not the sale-deed and also deposited in Court a sum of Rs. 14,050, the 5 per cent of the purchase money and also a sum of Rs. 17,562-8-0 as poundage fee. This application was objected to on behalf of the auction-purchaser on the ground that the judgment-debtors had not complied with the terms of Order 21, Rule 89, which required them to deposit the whole of the decretal amount in Court. His ease was that there was no real payment to the decree-holders and that in any case the adjustment of the decree which was evidenced by the receipt had not been sanctioned by the Court, as some of the judgment-debtors as well as the decree-holders were minors and that such an adjustment was consequently bad in law being contrary to the provisions of Rules 6 and 7 of Order 32 of the Code of Civil Procedure. The Court below gave effect to this contention and dismissed the judgment-debtors' application for setting aside the sale. It held that the guardians of the minor judgment-debtors and the guardians of the minor decree-holders could not effect an adjustment of the decree or receive any payment towards it without the sanction of the Court and further that the adjustment was not for the benefit of either of the minor judgment-debtors or of the minor-decree-holders. Against this order the judgment-debtors have filed the above appeal and there is a connected appeal No. 17 of 1950, filed by the decree-holders Nos. 2 to 7.

(3.) The question in both the appeals is whether the Court below is right in refusing to give effect to the adjustment as alleged by the judgment-debtors.