BHYRARAJU RAMARAJU Vs. PULAVARTHI LAKSHMIAH

JUDGEMENT

(1.) The facts which give rise to this revision petition may be stated as follows: The petitioner before me obtained a money decree in O.S. No. 617 of 928 on the file of the District Munsif's Court, Tanuku against four judgment-debtors. In execution of that decree he brought certain properties belonging to all the judgment-debtors to sale. The sale was effected on 2 April, 1929. Prior to the sale he applied under Order 21, Rule 72 for permission to bid in the auction and to set off the purchase amount against his decree as far as it goes. This application was ordered. When the sale was made on 2 April, 1929, giving operation to the order for set-off nothing was deposited by the petitioner nor was he asked to make any deposit. The respondent before me obtained a money decree in O.S. No. 33 of 1927 on the file of the Subordinate Judge's Court of Narasapur against three of the four judgment-debtors of the other suit. On 11 April 1929 he applied before the Subordinate Judge of Narasapur for transmission of his decree to the District Munsif's Court, Tanuku. It was dispatched on 12 April and reached Tanuku on the 15 April. In anticipation of the arrival of the decree the respondent applied for execution of his decree in the District Munsif's Court of Tanuku and for rateable distribution on the 12 April. The District Munsif of Tanuku has now allowed rateable distribution to the respondent. In the course of his judgment he relied on a case reported in Arunachalam Chetty v. Somasundaram Chetty [1920] 59 I.C. 86. Hence this revision petition.

(2.) The first point argued before me is that the application of the respondent on 12 April is incompetent. This is true as is shown by the decisions in Nanjunda Chettiar V/s. Nalla Karuppan Chettiar and Ankineedu Prasad V/s. Jaggayya . But these decisions do not show necessarily that the petition of 12 April though incompetent and useless on that date, did not become a good petition on the 15th after the receipt of the transmitted decree on that date. It is unnecessary to discuss this point further in view of my conclusion on the next point.

(3.) The second point argued for the petitioner is that his sale was completed on 2 April, 1929 and the proceeds were fully received on that date by way of set-off and therefore the respondent is not entitled to rateable distribution as in any view his execution application can be deemed to be regarded as filed on the 15th. In reply to this argument, Mr. Satyanarayana relies on Order 21, Rules 84 and 85 of the Code. Rule 84 says that at the time of sale 25 per cent of the amount bid in auction should immediately be deposited subject to any order under Order 21, Rule 72. Rule 85 says that excluding the amount ordered to be set off under Rule 72, the rest of the purchase money should be paid within fifteen days from the date of sale. Now in a case where the order for set-off has been made before the sale, the actual amount of the bid minus the poundage and other deductions may be equivalent to the amount of the decree or more or less. Where it is equivalent to the amount of the decree or where it is less, the effect of the order for set-off is that the decree-holder need not pay any amount either on the date of sale or some time after. The effect of the order for set-oft is that the whole of the amount of the bid minus the poundage expenses should be taken as set-off against the decree amount and nobody looks forward for payment either on the date of the sale or fifteen days thereafter. But if the amount of the bid is far larger than the decree amount, then, though the decree-holder may be excused from depositing 25 per cent of the purchase money on the date of sale, he has still got to deposit an amount fifteen days afterwards to make up the whole of the purchase amount. In such a case Order 21, Rule 85, operates. But in a case where the amount of the bid is less or equal there is no scope for looking forward for payment under Order 21, Rule 85.. In such circumstances in my opinion the whole of the set-off must be deemed as made on the date of sale and the whole of the amount must be deemed to have been received or realized eo instanti the sale is made. In this view the whole of the amount was realized on 2nd April. The execution application of the respondent must be deemed as made on the 15th. Therefore Order 21, Rules 84 and 85, do not avail.