NECHARUDDI SAFUI Vs. AYOD ALI

JUDGEMENT

(1.) This is an appeal against an appellate decree of the Subordinate Judge, 1st Court Alipore, affirming the decision of the Munsif, second Court, Diamond Harbour, The facts are not disputed.

(2.) The decree-holder appellant obtained a decree for contribution separately against the contesting respondent judgment-debtor 1 and also the judgment-debtor 2. The decree was not a joint decree. The judgment-debtor 1 had made a deposit in Court but the deposit was short by Rs. 4 and odd because of not depositing the costs decreed. The property of judgment-debtor 1, as also that of judgment-debtor 2 who had made no deposit whatsoever and from whom the entire contribution money payable by him was due, were put up for sale and the property of judgment-debtor 1 was sold for Rupees 40. Rupees 4-8-3 were due from judgment-debtor 1 after the deposit made by him. The decree-holder was to have deposited Rs. 8 and odd as 25 per cent, of the purchase money even after giving a set off for the amount of Rs. 4 and odd due. He did not make this deposit but deposited a smaller amount. Within 15 days he did not deposit the balance of the purchase money but deposited again a smaller amount. The result was that the purchase money was not deposited within the time allowed by law.

(3.) It has been held in a decision of this Court in the case of Sm. Annapurna Dasi v. Bazley Karim, 72 C. L. J. 129 : (A. I. R. (28) 1941 Cal. 85), that where a decree-holder purchaser does not pay the balance of the purchase money after deducting the decretal amount due, the sale to him is void even though it may be confirmed by the Court. This is exactly the position here.