ONKAR NATH JALAN Vs. RAMANAND PRASAD

JUDGEMENT

(1.) These two applications arise out of two execution cases. Civil Revision No. 307 of 1968 arises out of Execution Case No. 146 of 1966, which gave rise to Miscellaneous Appeal No. 13/2 of 1967/1968 and Civil Revision No. 308 of 1968 arises out of Execution Case No. 147 of 1966, which gave rise to Miscellaneous Appeal No. 14/3 of 1966/1968. The petitioner was an applicant for setting aside the sale held in these two execution cases covering an area of one katha two dhurs of land with a house standing on it, being survey plot Nos. 242 to 246, in the town of Motihari. This house was owned by Bishwanath Prasad Tibriwal, opposite party No. 3. The petitioner instituted a money suit against him, numbered as 37 of 1966 in the Court of Subordinate Judge, Motihari, for realisation of dues to the extent of Rs. 16,000/- on handnote. Opposite party No. 1, Ramanand Prasad. is the auction-purchaser in these two cases. Opposite party No. 2 is Badri Prasad Tibriwal, decree-holder in the two execution cases and cousin of the defendant in the petitioner's money suit and judgment-debtor in the two execution cases. In Execution case No. 146 of 1966, the amount of decree was Rs. 618-16 P. and in Execution Case No. 147 of 1966, the amount was only Rs. 188.87 P. The property was, however, sold for Rs. 3050/- in each of the two cases. The date of sale was 13th of December, 1966. It may be stated that opposite party No. 3 has only the property in dispute and no other property. On the 17th of March, 1966, the petitioner instituted a money suit and obtained attachment before judgment of the disputed property on the 23rd of March, 1960. The amount of outstanding debts payable by the judgment-debtor was Rs. 40,000/- and on the 19th of July, 1967, the petitioner's son purchased this property in Execution case No. 83 of 1966 for Rs. 40,000/-.

(2.) On the 4th of January, 1967, the petitioner applied, before the expiry of the period of thirty days from the date of sale, under Order 21, Rule 89, Code of Civil Procedure, for depositing in the executing Court the amount of decretal dues together with the requisite 5 per cent of compensation payable to the auction-purchaser. This was, however, opposed by the decree-holder. The learned Munsif, on a consideration of the objection raised on behalf of the decree-holder, however, came to the conclusion that the petitioner had a right to deposit the amount under Order 21, Rule 89, inasmuch as he was the person who was interested in the property which was auction-sold and as such, under the amendment of Order 21, Rule 89, made by the Patna High Court, the petitioner had every right to deposit the amount. This order was passed on the 10th of January, 1967, and money was actually deposited within time on the 16th of January, 1967, when the Court reopened, the Court being closed from the 12th of January to 15th of January. From that decision an appeal was preferred in the Court of the learned District Judge, Motihari, by the auction-purchaser on the 7th February, 1907. The learned Additional District Judge, who heard the appeal, however, with reference to certain authorities of this Court, set aside the judgment of the learned Munsif and hold that the petitioner had no locus standi to deposit the amount. Hence the two civil revision applications to this Court, which were referred by the Division Bench for consideration of the matter by a larger Bench because there were conflicting decisions on this point, the matter having been referred to that Bench by a learned Single Judge. The learned Judges referred to the following decisions: 2 Pat LJ 676 = (AIR 1917 Pat 159), Nand Kishore Jha v. Paroo Mian -- a case under the unamended rule; 4 Pat LJ 340 = (AIR 1919 Pat 501), Musammat Dhan-wanti Kuer v. Shen Shankar Lall; AIR 1936 Pat 119, Nasiniddji- Haidef v. Hakim "Muhammad Tahir; AIR 1941 Pat 204, Mundrika Singh v. Nand Lal Singh MR 1947 Pat 293, Deopati Kuer v. Mahabir Prasad Singh; AIR 1948 Pat 66, Kamiruddin Khan v. Sachidananda Jena; 1958 BLJR 728 = (AIR 1959 Pat 50), Radharaman Choudhary v. Gulab Thakur. It has been held in some of these decisions that the word 'interest' occurring in Order 21, Rule 89, means title and unless the person seeking to deposit the amount under Order 21, Rule 89, is himself the judgment-debtor, or seeks to deposit the amount as a person who has got title to the property, he cannot be held competent to make the: deposit. In other decisions however, of this Court, it has been held that a person having some kind of interest which is likely to be affected if the auction-sale is not set aside, must be held to be a person competent to make the deposit. The provisions of Order 21, Rule 89, its amendment by the Pattna High Court: and its amendment by the other High Courts along the same line and the decisions interpreting the unamended provision as also the effect of the amendment and the scope thereof, have to be examined in order to decide whether a person attaching before judgment a property which has been subsequently auction-sold in execution of a decree, can be held to be one having locus standi to make the deposit as contemplated under Order 21, Rule 89, Code of Civil Procedure. Order 21, Rule 89, in so far as it is relevant, runs thus:--

(3.) In Nand Kishore Jha's case, 2 Pat LJ 676 = (AIR 1917 Pat 159) it was held by Sharfuddin and Roe, JJ. that a person who is out of possession of certain immovable property but is litigating to establish his title thereto, is not entitled to make a deposit in Court to set aside the sale of such property held in execution of a decree. Following a decision of the Bombay High Court in Desai Himat Singhji Joravarsinghi v. Bhava-bhai Kayahhai; (1880) ILR 4 Bom 643, it was held that the party who was not in possession but expected to gain possession as a result of opening litigation, could not be held to be entitled to make payment on behalf of the person lawfully payable. A party in possession was interested in maintaining that possession and a party not in possession and subsequently attaching having no title, had no interest at all. Hence, a party not in possession at least of a part of the property could not be regarded as one entitled to make the deposit. That, however, was a decision based on the un-amended provision of Order 21, Rule 89. In 4 Pat LJ 340) = (AIR 1910 Pat 501), however, the point for consideration was whether a judgment-debtor who, subsequent to the sale oil his immovable property in execution, has sold his property privately may apply to have the auction-sale set aside under Order 21, Rule 89. It was held that he could so apply on the ground that he had sufficient interest left in him to make the application for depositing the amount on the date that the sale was held. The subsequent act in disposing of fee property was held to be immaterial for determining the right to make the deposit, as it was beyond the scope of Rule 89 to enquire into any transaction subsequent to the sale and to find out the motive for such a transaction. This ruling also does not throw much light upon the point under consideration in the instant case.