MADDI KUTUMBARAO Vs. SOLASA RAMACHANDRA RAO AND OTHERS

JUDGEMENT

(1.) This appeal raises a question of no little importance and the facts can be very shortly stated. Respondent No. 1 was appointed Receiver in O. Section 60/57 pending before the Sub-Court, Viyayawada for the sole purpose of getting the sale held in E. P. 37/56 in O. Section 116/49 pending in Sub-Court, Vijayawada, set aside. Thammana Tatayya and Narayana Murthy Annapurna Satram was managed by the trustees, respondents 2 and 3. Respondent No. 4 obtained a decree for money against the said Annapurna Satram (choultry) and put the same in execution in E. P. 37/56. The properties of this choultry were sold in the Court auction on 1-7-1957. The appellant was the purchaser. He purchased the properties for Rs. 24,600/-. In the meanwhile O. Section 60/57 was instituted in the Sub-Court, Vijayawada for the removal of the trustees, respondents 2 and 3 owing to their mismanagement. One of the reliefs claimed in that suit is for getting the sale held as above set aside. The suit O. Section 60/57 was filed under Section 92 C.P.C. Another relief which was claimed in the said suit is to make a provision to the effect that the decree in the present suit should be paid under the scheme settled in that suit. The Receiver appointed in the said suit filed an application under Order 21, Rule 89, C.P.C. on 31-7-1957 to set aside the sale. He deposited a sum of Rs. 1,230/- representing 5% of the purchase money for payment to the purchaser and Rs. 410-15-0 as the poundage and Rs. 123/- as interest. It was alleged inter alia, in the said petition that in O. Section 60/57 necessary provision for the discharge of the decree debt due to respondent No. 4 from the choultry is sought to be included and the mother of the 4th respondent who is the guardian showed her willingness for an adequate provision for the discharge of the decree debt being made in the said suit and has agreed to postpone realising the decree debt in O. Section 116/49. It was therefore prayed by the Receiver that the Court may dispense with the deposit of the amount specified in the proclamation of the sale for payment to the decree-holder as required under Clause (b) of Rule 89 of Order 21 C.P.C. and set aside the sale. This petition was resisted by the appellant herein on various grounds. The main ground was that the deposit of the amount mentioned in the proclamation being a condition precedent for setting aside the sale, and as no amount has been thus deposited, the petition is liable to be dismissed. It was also contended that the decree-holder being a minor as no permission under Order 32, Rule 7 C.P.C. was obtained, the agreement cannot be given effect to.

(2.) The Subordinate Judge, Gudivada, allowed the application and set aside the sale. He held that it is necessary that the decree should be fully satisfied and what is necessary is that there should be an arrangement between the decree-holder and the judgment-debtors. Dissatisfied with this order, the purchaser has filed ibis C. M. A.

(3.) The principal contention of Mr. B.V. Subrahmanyam, the learned Advocate for the appellant, is that the arrangement entered into between the decree-holder and the judgment-debtor in Ex. A-3 does amount to payment within the meaning of Order 21, Rule 89 C.P.C. and the Subordinate Judge, therefore, was in error in setting aside the sale. In order to appreciate this contention, it is necessary to know what arrangement actually has taken place between the decree-holder and the judgment-debtors. We have already stated that a scheme suit under Section 92 C.P.C. has been filed, in that suit, a request is made that some provision should be made in the proposed scheme for the payment of the decree amount and a Receiver in that suit was appointed to get the sale set aside. The decree-holder seems to haw agreed to this course. Thereupon, Ex. A-3 was entered into between the decree-holder and the judgment-debtors. The relevant portion of Ex. A-3 is as follows :