POHKAR Vs. MUSSADI LAL

JUDGEMENT

(1.) Pohkar suffered a decree for principal sum of Rs. 280/- plus interest and cost passed in favour of Mussadi Lal. In execution of that decree one acre land of judgment-debtor was put to auction on 5th January, 1976, in which the decree-holder was the highest bidder as he had sought permission of Court to give bid because none else was coming forward, to give bid in the earlier auctions. When the case came up for confirmation of sale before the Executing Court the judgment-debtor applied that he was prepared to deposit the entire decretal amount along with 5 per cent of the auction amount and that he may be given time. The Executing Court gave time to him. On 2nd March 1976 the judgment-debtor deposited the entire decretal amount along with interest on the auction money, total amounting to Rs. 432.75. In view of the deposit the Executing Court declined to confirm the sale by order dated 5th April, 1976 and directed that the decree-holder could withdraw the deposited amount considering the deposit to be under Order 21 Rule 89 of the Civil Procedure Code, (hereinafter called the 'Code'). Against the aforesaid order the decree holder, who was also the auction purchaser went up in appeal. The learned Senior Sub Judge (with enhanced appellate powers) by order dated 7th September, 1977 allowed to appeal and confirmed the auction sale in view of the fact that the judgment-debtor had not made the deposit within 30 days as required by Order 21 Rule 89 of the Code read with Article 166 of the Limitation Act, 1908. This is the revision by the judgment debtor.

(2.) After hearing the learned counsel for the parties and on perusal of the record I am of the view that this revision deserves to succeed. It is true that technically the lower appellate Court was right in coming to the conclusion that the deposit was not in time, and, therefore, the provisions of Order 21 Rule 89 of the Code were not attracted but there were two other salient factors which had to be kept in view : (i) that whenever the decree- holder is the auction purchaser then Courts in suitable cases can relieve the judgment-debtor from the hardship and can relegate the parties to the terms of the decree. Here the auction purchaser was the decree-holder and he himself had sought permission to bid because no other bidder was coming forward to give bid. He had given that the value of the property sold was Rs. 1300/- for preparation of proclamation of sale and still he purchased it for Rs. 1,000/-. The judgment-debtor who could not pay Rs. 280/- and owned only one Killa of land goes to show how poor must he be and in this particular case I would like to interfere and give relief to the judgment-debtor to the limited extent that his property be not sold and out of the deposited amount of entire decretal claim be paid to decree-holder, and (ii) that the decree-holder gave the value of the attached property as Rs. 1,300/- at the time of preparation of proclamation of sale. In view of Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma and others, 1977 AIR(SC) 1789, only so such of the property should have been sold which could satisfy the decree and not whole of it. On this basis also the sale of the entire property held by the judgment-debitor cannot be sustained. Moreover, now, the rule laid down in the aforesaid decision has been incorporated in Order 21 Rule 66(2)(a) of the Code by C.P.C. (Amendment) Act, 1976 w.e.f. 1.2.1977.

(3.) For the reasons recorded above, this revision is allowed, the order of the lower appellate Court is set aside and a direction is issued to the Executing Court to pay to the decree-holder the entire decretal amount along with costs and interest as per the decree out of Rs. 432.75 deposited by the judgment- debtor in Court on 2nd March, 1976. It is made clear that since Order 21 Rule 89 of the Code is not applicable to the facts of the present case, the decree-holder would not be entitled to 5 per cent of the sale price as an auction purchaser. If any balance amount is left with the Executing Court after satisfying the claim of the decree-holder that shall be refunded to the judgment-debtor. Since the judgment-debtor was late in depositing the amount in Court and had not raised the points which have been taken notice of by this Court, there will be no order as to costs.