PANNA LAL Vs. BHOLA NATH

JUDGEMENT

(1.) This is a revision from an order passed by the learned District Judge, Meerut, reversing an order of the learned Subordinate Judge of that district who set aside the sale of a house held in execution of a decree under Order 21, Rule 89, Civil P.C.

(2.) Har Sahai obtained a decree for sale or foot of a mortgage in respect of several houses, and a shop including house No. 559 against the applicant Panna Lal and three others. Two of the houses, including No. 559 and the shop, were sold by auction and fetched sufficient price to satisfy the decree. House No. 559 was sold by a separate lot for Rs. 1,000 to Bhola Nath, the opposite party. The remaining house and the shop sold by separate lots fetched prices which together with Rs. 1,000, the price of house No. 559, fully satisfied the decree as we have already stated. Within thirty days of the sale of house No. 559 Panna Lal, who is probably solely interested in that house, deposited under Order 21, Rule 89, Rs. 1,000 plus Rs. 50, and applied for an order setting aside the sale of house No. 559. The application was contested by the auction-purchaser, but the Court of first instance refused to confirm the sale and set it aside. On appeal by the auction- purchaser the learned District Judge reversed the order of the Court of first instance and dismissed the application under Order 21, Rule 89, Civil P.C. Panna Lal has applied to this Court in revision. The deposit and the application made by Panna Lal under Order 21, Rule 89 were objected to by the opposite party on two grounds, viz. (1) that no sale can be set aside under Order 21, Rule 89 until the entire decretal amount, together with 5 per cant of the purchase money is deposited and that the applicant having deposited only Rs. 1,000, for which the house in question had been sold, the provisions of Order 21, Rule 89, Civil P.C., were not complied with; and (2) that the auction-purchaser was not made a party to the application purporting to be one under Order 21, Rule 89, Civil P.C. Both the Courts below overruled ground 2 which has not been pressed in this Court. As regards ground 1 which found favour with the lower appellate Court, though not with the Court of first instance, reliance is placed upon the wording of Rule 89, Order 21, which directs payment to the purchaser of the sum equal to 5 per cent of the purchase money, and to the decree-holder, of the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. The argument ignores the latter half of Rule 89(b) which materially qualifies the provision for payment to the decree-holder. The judgment-debtor is entitled to deduct from: the amount specified in the proclamation of sale...any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(3.) This part of the rule was apparently overlooked by the learned District Judge who appears to have been of opinion that, though Rs. 50 deposited for the auction-purchaser was adequate, the sum of Rs. 1,000 being part only of the decretal amount was insufficient and that though the decree-holder...had stated in express terms that he did not object to the setting aside of the sale,