VENKATESWARA Vs. M SATYAVATHI

JUDGEMENT

(1.) The case raises an interesting question of scope of power of the executing court under Order 21 Rule 2 A of the Code of Civil Procedure, 1908 (Act V of 1908) as amended by Sec. 72 of Code of Civil Procedure (Amendment) Act, 1976, for short 'the Code' to record full satisfaction of the decree after the sale of immovable property in execution of a money decree but before confirmation thereof. Undisputed facts relevant to the point in issue are thus :

(2.) One G. Pentamma laid the suit against the petitioner on the foot of a mortgage in O. S. No. 90/69 and obtained ex-parte decree on January 29, 1971, followed by the final decree dated December 13,1971. Her granddaughter, the first respondent filed O S.No. 72/69 on the foot of a promsisory note and obtained ex-parte decree dated January 27, 1971. She laid E. P. No. 78/71 on March 26, 1971 and brought to sale Ac. 17-27 1/2 cents of valuable wet lands in West Godavari district on March 15, 1972. Pentamma the decree-holder in O. S. No. 90/69 became the auction-purchaser of the aforesaid property for a sum of Rs. 2,600/- subject to the mortgage decree. The sale is yet to be confirmed. E. A. No. 388/72 in E. P. 78/71 filed under Order 21 Rule 90 was dismissed for default. Later, E. A. No. 75/78 was filed for restoration, which is pending. Thereby, the application to set aside the sale has not become final. Pentamma filed E. P. 72/77 in U. S. No. 90/69 and sought to bring the hypotheca to sale. The hypotheca is Ac. 13-83 1/2 cents, which is also the subject matter of sale in E. P. 78/71. Before the hypotheca being sold, the sale warrant amount, viz., Rs. 83,000/- was deposited into court. On December 33, 1982, full satisfaction in O. S. No. 90/69 was recorded without any objection by Pentamma through the orders in E. A. No. 389/82, marked as Ex. A-1. The Petitioner deposited on January 15, 1983 the entire sale amount due in E. P. 78/71 in O. S. No. 72/ 69 in a sum of Rs. 9.350/- and through E. A. No. 5/83 prayed the court below to record full satisfaction. Pentamma died and respondents 2 and 3 are her legal representatives. The court below dismissed the application on two grounds, namely, the application under Order 21 Rules 90 is pending and there is inordinate delay in depositing the amount.

(3.) Sri Ananta Babu, learned counsel for the Petitioners, contends that Pentamma, the decree-holder in the mortgage suit and the auctionpurchaser in E. P. 78/71 in O. S. No. 72/69 is no other than the grand-mother of the 1st respondent decree-holder. Taking advantage of the impecuniosity of the petitioner, Pentamma and respondent No. 1 intend to over-reach the petitioner by bringing not only the valuable property of the petitioner, namely, 13 acres and 83 1/2 cents, the hypotheca in O. S. No. 90/ 69, but also Ac. 3-44 cents belonging to his wife for Rs. 2,600/-, subject to Pentamma's mortgage decree. She has abandoned her capacity as an auction purchaser and resorted to have her decree executed. But without any objection by her, full satisfaction was recorded on deposit of Rs. 83,000/-, the sale warrant amount. Subsequently, the entire amount due in E. P. No. 78/81 (Money decree) is also deposited. The sale has not been confirmed. Though there is a delay in deposit of the amount, there is no express prohibition to record full satisfaction. There is no limitation prescribed to lay the application under order 21 rule 2A. At any time before confirmation of, sale, an application could be filed and the full satisfaction could be recorded in an appropriate case. The court below committed error of jurisdiction refusing to record full satisfaction. In support thereof, he placed strong reliance on Govindrao Mahadik vs. Devi Sahar and Narayan Pillai vs. Damodaran #2. He also stated that title of the judgment debtor is not divested till the sale is confirmed, placing reliance on Tribhovandas vs, Ratilal #3. Sri Poornaiah the learned counsel for the respondents, resisted contending that unless the application under Order 21 Rule 90 is withdrawn, the application under Order 21 Rule 2A cannot be maintained. He relied on Shiv Prasad vs. Durga Prasad #4 In fact, the application comes only under Order 21 Rule 1 but was filed under Order 2 Rule 2A which has no application. He further contends that once the sale is made, unless the same is set aside, the court has no power to record full satisfaction. He also contends that there is an abnormal delay of nearly ten years to deposit the amount. Therefore, the court below has rightly refused to record full satisfaction.