KURCHA SANYASINAIDU Vs. CHODE SURYARAO

JUDGEMENT

(1.) This case has been referred to a Division Bench because of a seeming conflict between a decision of the Madras High Court in Chinnappa Tharakan v. Ittichi Amma, AIR 1926 Mad 765 : 50 Mad LJ 580 and a recent decision of this Court in Veeraraghavayya v. Venkata Subbaraya Sastri, 1963-2 Andh WR 440 : (AIR Andh Pra 94) as to the true scope of Rule 89 of Order XXI of the Code of Civil Procedure.

(2.) The relevant facts giving rise to this revision petition are as follows : The 1st respondent obtained a money decree in O. S. No. 146 of 1954 on the file of the Subordinate Judges Court, Kakinada, against the 2nd respondent. In belonging to the judgment-debtor were put to auction on 11-6-1962, but only one item (Lot No. 1) was sold for a sum of Rs. 1500. The successful bidder was the 4th respondent. It is important to note that the proclamation of sale specified that an amount of Rs. 15,733-87 nP. was due under the decree and the property of the judgment-debtor was being brought to sale for the recovery of that amount.

(3.) Subsequently the revision-petitioner, claiming to have derived title from the judgment-debtor to the item which was sold in the court-auction, filed an application before the District Munsif of Chodavaram under Order XXI, Rule 89 Civil Procedure Code, to have the sale set aside, and along with the application, he deposited in Court a sum of Rs. 1500, representing the amount for which that item of property had been sold, in addition to the sum equal to 5 per cent of the purchase money. That application was opposed by the decree-holder as well as the auction-purchaser on the main ground that the applicant not deposited the entire decretal amount as shown in the sale proclamation but only a portion of it. The District Munsif upheld the objection and dismissed the application. An appeal against that order taken to the District Court, Visakhapatnam, was also dismissed. Hence this revision petition.