RAMICHETTI RAMAYYA CHETTI Vs. PUTTA KRISHNAYYA CHETTI

JUDGEMENT

(1.) The decree-holder in O.S. No. 56 of 1949 purchased the immovable properties of his judgment-debtor at a Court sale held in execution of the decree. The judgment-debtor deposited into Court the full amount required under Order 21, rule 89, Civil Procedure Code, within the prescribed period. In his application to set aside the sale, there was a statement that the deposit was made "without prejudice to the suit of the petitioner in O.S. No. 616 of 1949". Now O.S. No. 616 of 1949 was a suit to set aside the decree in O.S. No. 56 of 1949 which was then pending. By the time the petition under Order 21, rule 89, Civil Procedure Code, was heard, the suit had been withdrawn. On an objection raised by the decree-holder to the validity of the deposit, the judgment-debtor withdrew the statement that the deposit had been made without prejudice to O.S.No. 616 of 1949. Nevertheless the trial Court held that the deposit was a conditional one and therefore improper, that the withdrawal of the condition after the expiry of the time prescribed for the deposit and application was ineffective and that the application under Order 21, rule 89, was unsustainable. The lower appellate Court differed and reached the following conclusion :

(2.) The correctness of this view is challenged on behalf of the decree-holder purchaser, the appellant in this second appeal. The respondents raised a preliminary objection that no second appeal lies. The appellant relied on the decision in Srinivasa v. Ayyathwrai, (1897) 8 M.L.J. 54 : I.L.R. 21 Mad. 416. That was a decision under the Civil Procedure Code of 1882. Section 310-A of the Civil Procedure Code of 1882 corresponded to Order 21, rule 89, Civil Procedure Code. There was. no provision in the Civil Procedure Code of 1882 for an appeal against the order setting aside or refusing to set aside a sale under section 310-A. A decision under section 310-A being one on a question relating to the execution, discharge or satisfaction of the decree was held to be appealable under sections 2 and 244 of the old Code, if the decree-holder was himself the purchaser inasmuch as the question was one between the parties to the suit. The Civil Procedure Code of 1908 has changed the law. Under section 104 (2), no appeal lies from an order passed on appeal under the Rules from which an appeal is expressly allowed by the Rules. Order 43, rule 1(j), provides for an appeal from an order setting aside or refusing to set aside a sale under Order 21, rule 92, Civil Procedure Code, which comprises orders made under Order 21, rule 89. No second appeal would lie from an order passed on appeal from an order under, 21, rule 89, Civil Procedure Code, by reason of the prohibition, in section 104 (2). This is so even if the matter is one relating to the execution, discharge or satisfaction of the decree and it arises between the parties to the suit and therefore falls within section 47. Section 2 (2) of the Civil Procedure Code expressly excludes from the definition of a decree any adjudication from which an appeal lies as an appeal from an order. Therefore, in view of the provisions of Order 43, rule 1(j), read with sections 2 (2) and 104 (2), Civil Procedure Code, it must beheld that an order setting aside or refusing to set aside a sale under Order 21, rule 89 or 90, Civil Procedure Code, is not open to second appeal even though the decree-holder is the purchaser at the execution sale. I was asked to convert the Second Appeal into a Civil Revision Petition. It was pointed out that Courts had interfered under section 115, Civil Procedure Code, with appellate orders setting aside sales under Order 21, rule 89, Civil Procedure Code. This is no doubt the case.

(3.) The question is whether the order of the appellate Court setting aside the sale under Order 21, rule 89, Civil Procedure Code, is without jurisdiction because the deposit made by the judgment-debtor was not unconditional but was hedged in with a condition not warranted by law. For a deposit under Order 21, rule 89, to be valid or effective, it must be unconditional, that is to say, the money should be available to the decree-holder to be drawn out by him forthwith and unconditionally. A payment into Court under protest or a payment subject to the purchaser giving security or undertaking any other onerous obligation before drawing out the amount, would not be valid. Reliance was placed on the decision of Venkatasubba Rao, J., in Kumukutty v. Neelakantan, (1930) 59 M.L.J. 893 : I.L.R. 53 Mad 943, where the learned Judge observed that the object of Order 21, rule 89, is to " put an end to every kind of contention and dispute" ; that the rule would be "frustrated if the person paying money under it is permitted to do so under protest" ; that "if the debtor wants to keep a dispute open, he cannot claim the benefit" of rule 89 ; and that the rule "is inconsistent with the notion that payment can be made either under protest or coupled with conditions." In Krishna Iyer v. Arunachalam Chettiar, (1935) 69 M.L.J. 349 : I.L.R. 58 Mad. 972 (F.B.), it was held that a deposit made under Order 21, rule 89, must be taken to have been made for payment to the decree-holder voluntarily and unconditionally. In Raghuram v. Deokala Pande, (1927) I.L.R. 7 Patna 30 the Court held that the person making a payment under Order 21, rule 89, must accept the validity of the Court sale. Kulwant Sahay, J., observed :- "Once a payment is made under Order 21, rule 89, it is clear that the person making the payment cannot be heard to say that the sale was not a valid sale and that the money deposited should not be paid to the decree-holder". Stray sentences from these judgments' were relied upon as complete and comprehensive statements of the law. Needless to say that they cannot be substituted for the provisions of Order 21, rule 89. A petition filed under Order 21, rule 89, Civil Procedure Code, referring to the existence of collateral proceedings in which the validity of the decree is impugned could not be regarded as imposing a condition on the decree-holder or auction-purchaser before the former could draw out his decree amount and the latter, his solatium of 5 per cent, from the deposit 'in Court. If an applicant under Order 21, rule 89, states that if the sale is not set aside the deposit might be returned to him, it is not a condition but only a statement of one of the inevitable legal consequences of the sale not being set aside. The right to a refund of the deposit in that event would be there, whether expressed or not in the petition under Order 21, rule 89, and a reference to it would not make the deposit conditional. Maduri Saran v. Bishambar Nath, (1927) I.L.R. 49 All. 839. Again a judgment-debtor, who has appealed from a decree in execution of which his property has been sold and who makes a deposit under Order 21, rule 89, Civil Procedure Code, to set aside the sale pending the appeal, will have a right to restitution of the money paid by him and drawn by the decree-holder, if the decree is reversed on appeal and the suit is dismissed. The same would be the position if the decree is set aside in a suit filed by the judgment-debtor or if the decree is an ex parte one and is set aside at the instance of the judgment debtor after the sale was held in execution of the decree. See Krishnam Chettlar v. Nachimuthu, (1942)1 M.L.J. 500 : A.I.R. 1942 Mad. 453. Again if the Court overrules the objection of the judgment-debtor to the execution of the decree on the ground that it is barred by limitation and sells the property in execution and on an appeal by the judgment-debtor, it is held that execution of the decree was barred by limitation, the judgment-debtor making the deposit under Order 21, rule 89, Civil Procedure Code, would, in law, be entitled to a restitution of the deposit made by him. See Mohomed Taqi Khan v. Raja Ram, A.I.R. 1943 All. 267. Hi in the cases referred to above, the judgment-debtor in his application under Order 21, rule 89, refers to the proceedings pending or intended to be taken for getting rid of the decree and makes a deposit, it does not become a conditional one. It is merely a statement of a fact and of the legal consequences flowing from it. The decree-holder is not thereby prevented from withdrawing the money deposited. Only he is reminded, quite needlessly perhaps, of the existence of possibility of proceedings by way of a suit, appeal or application to set aside the decree and of the legal consequences that might result therefrom, if they prove successful.