MUPPANNAPPA KANNAPPA GASTIYAVAR Vs. FAKIRAGOUDA CHANBASANGOUDA GANGANGOUDAR

JUDGEMENT

(1.) THE facts leading up to this civil revision application are that a money decree was passed against the judgment-debtor, applicant No.1, and his judgment-creditor applied for the execution of that decree by attachment of certain lands belonging to the judgment-debtor. THE execution proceedings were transferred to the Collector and the Collector sold the attached lands on December, 28, 1944. This property was purchased at the auction sale by opponent No.2. On January 13, 1945, the judgment-debtor mortgaged the property to applicant No.2 and it was provided in the mortgage deed that applicant No.2 should keep with himself a sum of Rs. 1,750 out of the mortgage amount which was advanced to the judgment-debtor for the purpose of depositing the amount in Court to set aside the auction sale which had taken place. On January 15, 1945, this sum of Rs. 1,750 was deposited in Court by the mortgagee. On January 27, 1945, a joint aplication was made by the mortgagee and the judgment-debtor to set aside the sale. THE learned Judge before whom the application came rejected the application holding that the deposit was made by the mortgagee and not by the judgment-debtor and, therefore, he could not set aside the sale. THE matter went in appeal and the lower appellate Court took the same view. Now the matter, comes before us in civil revision application.

(2.) THE application to set aside the sale has been made by the judgment-debtor. THE money that was deposited, viz. Rs. 1,750, belonged to the judgment-debtor and it was under the directions of the judgment-debtor that the amount was deposited by the mortgagee. It is true that the physical act of depositing the amount, was performed by the mortgagee and not by the judgment-debtor, and Mr. Hattyangadi, on behalf of the opponents, contends that under Order XXI, Rule 89, not only the application has got to be made by the judgment-debtor to set aside the sale, but the deposit has to be made by the judgment-debtor in person. According to him the law requires that the deposit should be either by the judgment-debtor in person, or if he does not want to make the deposit, he must proceed under Order Ill, Rule 2, and must have a recognised agent for the purpose of performing that act. In our view, that is taking much too technical and also an erroneous view of the provisions of Order XXI, Rule 89. It is true that as Order XXI, Rule 89, interferes with vested interests which have come into existence by the sale of the property, the rule must be strictly construed, and what is required by the rule and what is mandatory is that the application must be made by the judgment-debtor. What is also required by the rule and what is also mandatory is that the deposit of the amount must be the deposit by and of the judgment-debtor. But the rule does not require that the judgment-debtor for instance cannot send his clerk with the money to the Court to make the deposit. It would be absurd to construe the rule to mean that the judgment-debtor himself must walk to the Court and with his own hands pay the amount to the proper officer of the Court. So long as we have the position that the judgment-debtor is sending his own money for deposit and the deposit is being made by some one who does it under the directions of the judgment-debtor, the rule is satisfied.

(3.) RULE in stay application made absolute. No order as to costs. .