SUKHRAJ ROY Vs. KESHAB MOHAN THAKUR

JUDGEMENT

(1.) This is an appeal on behalf of a decree-holder who is aggrieved by the appellate order passed by the learned Subordinate Judge of Bhagalpur in an execution proceeding. The sole question for determination is whether the judgment-debtor is entitled to withdraw the excess amount which he deposited to have the sale of his holding set aside in the circumstances narrated below:

(2.) The facts necessary for the decision of this question are no longer in controversy and lie within a narrow compass. The decree-holder obtained a rent decree. on 31 May 1938, for an amount which along with the costs of execution came up to Rupees 428-4-0 the amount stated in the sale proclamation issued in Kent Execution Case No. 221 of 1939, started in the second Munsif's Court, Bhagalpur. The holding was advertised for sale and purchased by the decree- holder for Rs. 451 on 20 November 1939. In the meantime the judgment-debtor had applied to the Rent Reduction Officer for an order to reduce the rent payable under Section 112-A (1)(d), Bihar Tenancy Act. His application was allowed, and by an order dated 7 December 1939, the rent payable for this holding was reduced to Es 64 10-0 instead of Rupees 125-7-10 besides cess which was the rate at which the decree under execution was passed. Accordingly, the judgment- debtor made a deposit on 19 December 1939, tendering the full amount and compensation as required under Order 21, Rule 89, Civil P.C., and he also applied at the same time under Section 15(a), Bihar Restoration of Bakasht. Lands and Reduction of Arrears of Rent Act, (Act 9 of 1938) praying that the total amount which he was depositing to have the sale set aside should not be made over to the decree-holder but only such amount as he was entitled to recover on account of arrears of rent as was finally determined by the Rent Reduction Officer. As the amount in deposit satisfied the requirements of Order 21, Rule 89, the learned Munsif, as he was bound to do, set aside the sale; but he took the view that as the order under Section 15(a) of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act had been passed after the sale had been held the judgment-debtor was not entitled to any relief. Prom this order there was an appeal to the learned Subordinate Judge who was of the opinion that the decree- holder could not in law be held to have realised his arrears by the sale which took place on 20 November 1939 and as in the meantime an order binding on the decree-holder was passed by the Rent Reduction Officer, the decree-holder was not entitled to recover the arrears at the rate at which the decree was passed but was entitled to recover at the reduced rate o? Rs. 64-10-0 only.

(3.) He accordingly decided that the judgment-debtor was entitled to refund of the excess amount from the decree-holder. Hence the appeal to this Court.