RAMINDER KAUR Vs. KHARAITI LAL

JUDGEMENT

(1.) These two appeals actually arise out of one cause. Consequently, these can be disposed of by one order. A few facts may be noticed.

(2.) Colonel Joginder Singh filed a suit against Kharaiti Lal for recovery of mortgage amount by sale of Industrial Plot No. 255-P and the building constructed on it. On January 23, 1976, the trial Court passed a preliminary decree for the recovery of Rs. 28,187.50 along with future interest @ 9% per annum. The defendant judgment-debtor was given time to pay the decretal amount on or before March 23, 1976. He did not deposit. The plaintiff (Col. Joginder Singh) filed an application for the passing of the final decree. On April 8, 1976, the Subordinate Judge, Chandigarh, passed the final decree. The proceedings for execution of the decree were initiated. The mortgaged property was ordered to be auctioned. On August 25, 1976, the property was auctioned. Nazar Singh (the predecessor-in-interest of the present appellants) purchased the property for Rs. 45,500/-. On August 28, 1976, the judgment-debtor filed an application under Order 21, Rule 90. He raised objections against the sale and prayed that it be set aside. The Court framed an issue.- "whether there had been an irregularity in publishing and conducting the sale as alleged?" It held that "wide publicity was given to the sale proclamation and there is no material" on record to show that there was any material irregularity or fraud in "publicising the sale". It further held that "the property in dispute is only one kanal in area and that building needed intensive repairs. . . . . " It was occupied by a tenant who was also interested in purchasing it.As such, the property could not have fetched "more price". On this basis, the Court overruled the objections vide order dated November 28, 1977. On the next day, vide its order dated November 29, 1977, the Court confirmed the sale.

(3.) Aggrieved by these two orders, the judgment-debtor filed First Appeals Nos. 373 and 374 of 1977. While these appeals were pending, the judgment-debtor deposited an amount of Rs. 47,250/- on May 3, 1985. On August 19, 1985, another amount of Rs. 525/- was deposited. Thereafter, the two appeals were heard and decided by the learned single Judge vide order dated August 30, 1985. Following the rule laid down by a Division Bench of the Madras High Court in M. Sevugan Chettiar v. V. A. Narayana Raja, AIR 1984 Mad 334, the learned single Judge held that in view of "the factum of deposit of the auction money together with a sum equal to 5 percent thereof, I have no option but to consider this deposit as payment under Order 34, Rule 5 of the Code of Civil Procedure. As a consequence, the auction sale and its confirmation are set aside." It was directed that the deposited amount be paid "to the legal heirs of Nazar Singh, auction purchaser who had died during the pendency of the appeals." Both the appeals were, accordingly, disposed of.