PANNALAL SEN Vs. LAKSHMISONA PYNE

JUDGEMENT

(1.) This is an application for setting aside the sale of premises No. 7, T?ltal? Lane, under the provisions of Order XXI, Rule 89 of the Code of Civil Procedure. The facts are shortly as follows: One Kumud Behari Pyne died intestate on December 33, 1944, leaving behind his widow Sm. Lakshmisona Pyne and three minor sons, as also three unmarried daughters. The letter of administration to the estate of the deceased was granted to Sm. Lakshmisona Pyne. On May 19, 1946, a decree was passed against Sm. Lakshmisona Pyne and the three minor sons, the mother acting as their guardian-ad-litem. The decree was for Rs. 6,500 with interest at 6 per cent. per annum, and costs. On February 11, 1947, an order was made for attachment of premises No. 7, T?ltal? Lane, belonging to the estate of Kumud Bihari Pyne. The attachment was levied on March 1, 1948. Thereafter, the property was put up for sale by the Sheriff and sold by public auction on March 14, 1951, and was purchased by one Krishnahari Ghosh of 18/1, Sahitya Parishad Street, Calcutta, for Rs. 17,500. It is said that the premises is valued at Rs. 62,000, but that is a matter with which I am not concerned in this application.

(2.) On April 12, 1951, this application was taken out on behalf of the Defendant, returnable by special leave on April 13, for (a) leave to deposit in Court for payment to the purchaser Rs. 875, being 5 per cent. of the purchase-money, and a sum of Rs. 8,027-8-0, being the decretal amount with interest at 6 per cent. up to April 19, 1951; (b) leave to deposit in Court Rs. 462-8-0, being the costs of execution; and (c) for an order that the sale of premises No. 7, Taltala Lane, be set aside. It appears that on April 12, 1951, the application was moved ex parte and leave was granted to deposit the money in terms of (a) and (b) followed by the words "Sheriff to act on counsel's "endorsement". The application was also noted as made on that day. It appears that, pursuant to this order, the money was deposited with the Sheriff. The amount deposited includes the Accountant-General's commission.

(3.) The auction-purchaser has now taken a point which is one of some difficulty. He takes the point that, under Order XXI, 89, the money has to be paid into Court and payment to the Sheriff is not payment into Court, so that the provisions of Order XXI, Rule 89, have not been complied with, and the sale cannot be set aside. Learned Counsel, appearing on behalf of the auction-purchaser, has argued as follows: He says that the Sheriff has got some specified duties. If a property is attached, he can accept money for release of the attachment, or bring the property to sale and accept the money realised by sale. But there is no provision in law for his accepting money paid under the provisions of Order XXI, Rule 89. Such moneys could only be paid to the Accountant-General or to the Registrar.