MUTHUVENKATAPATHY REDDI Vs. KUPPU REDDI

JUDGEMENT

(1.) In 1935 the third respondent in this appeal obtained a decree for Rs. 3,575 against the first and second respondents in the Court of the District Munsif of Villupuram. In execution of the decree the third respondent attached and brought to sale fourteen items of immovable properties belonging to the judgment- debtors. One item of property was purchased at the Court auction by the appellant for the sum of Rs. 264. The total amount realised for the fourteen properties was Rs. 2,217. The sale took place on the 2nd December, 1935. On the 2nd January, 1936, the judgment-debtors assigned to the decree-holder a mortgage which had been executed in their favour. The assignment was in part satisfaction of the amount due under the decree. It is admitted that the value of the mortgage assigned was Rs. 2,207 leaving a balance due under the decree of Rs. 10. The Court closed for the Christmas vacation some days before the 25 December, and did not reopen until the 3 January, 1936. On that date the judgment-debtor paid into Court Rs. 10, the difference between the amount stated in the sale proclamation and the value of the mortgage assigned to the decree-holder. They also paid into Court Rs. 110-12-0, being five per cent, of the purchase consideration and Rs. 137-2-0 the amount required for poundage These payments into Court were accompanied by an application for an order setting aside the sale under the provisions of Order 21, Rule 89, of the Civil P. C.. It was contended by the appellant that this application did not lie. In the first place it was said that the full amount ought to have been deposited in Court within thirty days of the sale and the non-fulfilment of this condition vitiated the application. In the second place it was said that in order to comply with the provisions of Order 21, Rule 89, the payment by the judgment-debtors to the decree-holder must be in cash, and therefore the assignment of the mortgage did not amount to a payment to the decree-holder within the meaning of the rule. The District Munsif decided against the appellant and on appeal his decision was upheld by the District Judge of South Arcot. The present appeal is from the decree of the District Judge.

(2.) Order 21, Rule 89 of the Civil P. C. permits a judgment-debtor to apply to the Court to have a sale of immovable property in execution set aside provided certain conditions are fulfilled. He must deposit in Court for payment to the purchaser a sum equal to five per cent, of the purchase money and in addition must deposit for payment to the decree-holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. Rule 92 requires these deposits to be made within thirty days from the date of sale. If the deposits are made within the required period the Court is bound to set aside the sale. Under the provisions of Art. 166 of the Limitation Act the application for setting aside must be filed within thirty days of the sale. Section 10 of the General Clauses Act states that where, by any Central Act or Regulation made after the commencement of the Act, an act or proceeding is directed or allowed to be done or taken in a Court for office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. The deposit contemplated by Order 21, Rule 89 could not in the present case be made within thirty days of the date of the sale because the Court was closed, but it was made on the reopening day and was in time by virtue of this provision of the General Clauses Act.

(3.) The second question calls for more consideration, but apart from an obiter dictum in an Allahabad decision all the reported cases dealing with this question are against the appellant. As I have indicated, he would have it that the judgment- debtor cannot make payment to the decree-holder within the meaning of Clause (b) of Rule 89 unless he tenders cash. In other words, the delivery by the judgment-debtor to the decree-holder of moneys worth would not relieve him from the necessity of paying into Court the whole of the decretal amount to entitle him to an order setting aside the sale. This question has been considered by this Court on three occasions. It arose for the first time in Vedala Lakshminarasimha Charyulu V/s. Pacha Lakshmiamma (1912) M.W.N. 756, which was decided by a Bench composed of by Abdur Rahim and Sundara Aiyar, JJ. It was there held that an agreement with the decree-holder's widow to treat a portion of the decree-debt as discharged in consideration of services rendered by the judgment-debtor to her husband was a valid discharge and the actual receipt of cash was not necessary. In Anantha Lakshmi Ammal V/s. Sankaran Nair , Benson and Sundara Aiyar, JJ., held that a decree-holder was entitled to waive a portion of the amount due to him and that the waiver operated as payment under Rule 89. The decision in Vedala Lakshminarasimha Charyulu V/s. Pacha Lakshmiamma (1912) M.W.N. 756 was approved of. The question was fully discussed by Beasley, C.J., in Chathurvedula Subbayya V/s. Simha Venkata Subba Reddi (1935) M.W.N. 937, a case where the facts were similar to the facts in the present case. There a judgment-debtor put in an application under Order 21, Rule 89 and deposited the required five per cent, of the purchase money for payment to the auction purchaser, but he made no deposit for payment to the decree-holder because the latter had agreed to accept a mortgage from the judgment-debtor in satisfaction of the amount owing to him under the decree. As in the present case, the auction purchaser objected and contended that the judgment-debtor was required to deposit the amount in cash. This objection was overruled. The learned Chief Justice considered that the granting of the mortgage was a payment to the decree-holder within the meaning of the rule and expressed the opinion that a decree-holder could if he chose waive the whole of the decretal amount, in which case the judgment-debtor would not be required to make any deposit in Court. The Calcutta High Court shares the opinion of this Court on this question - see Jyotish Chandra Ghose V/s. Bireswar Haldar (1935) 39 M.W.N. 829 and National Insurance Co., Ltd. V/s. Ezekiel Aaron David I.L.R. (1937) 2 Cal. 606. In the judgment in the latter decision reference was made to the decision in Chathurvedula Subbayya V/s. Simha Venkata Subba Reddi (1935) M.W.N. 937.