OBLA K SUBBAYYAN Vs. THOPPAI MUTHAYYAN

JUDGEMENT

(1.) FOLLOWING the ruling in Karunakara V/s. Krishna (1915) I.L.R. 39 Mad. 429 : 28 M.L.J. 262 which takes a strict view of Order 21. R 89 and holds that the terms of the rule should be "very strictly conformed to" I think this petition must be allowed. The 1 defendant did not deposit in court the amount stated in the proclamation and the 5 per cent himself. He is not entitled to take advantage of any deposit, made by his co-judgment debtor of the defendant, which was not made conjointly with him but quite independently of him. Such a deposit in Court cannot be treated as money received by the decree-holder within the meaning of the rule so as to enable the respondent to take advantage of it; see Trinback V/s. Ramachandra I.L.R. 23 Bom. 723 followed in Karunakara V/s. Krishna (1915) I.L.R. 39 Mad. 429 cited above.

(2.) IN these circumstances 1 must hold that the provisions of R. 89 has not been complied with by the respondent and the order setting aside the sale of item 1 must be reversed. The order of the District Judge is set aside and that of the Subordinate Judge is restored with costs here and the courts below.