AMRITLAL NARSILAL SHAH Vs. SADASHIV ANNA MALEKAR

JUDGEMENT

(1.) In execution of a money decree obtained by opponent No. 2 against opponent No. 1 the latter's lands were attached and sold by auction to the petitioner for Rs. 450 on December 11, 1941. It was stated in the proclamation of sale that the amount payable to the decree-holder was Rs. 450-8-0 together with interest at six per cent, per annum on Rs. 439-4-0 from. January 29, 1937, to December 11, 1941. On January 9, 1941, that is to say within thirty days after the auction sale, the judgment-debtor deposited in Court Rs. 595 and made an application under Order XXI, Rule 89, of the Civil Procedure Code, 1908, to have the sale set aside. He stated in the application that the amount to be deposited would be Rs. 22-8-0 representing five per cent, of the auction price of Rs. 450, Rs. 450-8-0 the principal due to the decree holder and Rs. 118-8-0 interest on Rs. 439-4-0 as stated in the sale-proclamation. Thus the total amount payable to the auction-purchaser was Rs. 22-8-0 and that payable to the decree-holder was Rs. 569. Although the amount to be deposited thus came to Rs. 591-8- 0, still he produced Rs. 595 in order to allow for any error in calculation. Notices were duly served upon the auction-purchaser and the decree-holder as required by the proviso to Order XXI, Rule 92(2). The auction-purchaser put in a purshis stating that he had no objection if the auction sale was set aside. Three weeks thereafter the decree-holder put in a purshis stating that the interest due to him according to the proclamation was Rs. 128-3-0 and, therefore, the judgment-debtor had deposited Rs. 6-3-0 less than the amount due to him. He, therefore, contended that the sale should not be set aside and also added that if the Court decided to set aside the sale, then Future interest should be awarded to him. The executing Court found that the amount deposited by the judgment-debtor was short by Rs. 6-3-0. The judgment-debtor produced that amount in April, 1942, admitting that he had committed a mistake in the calculation of the interest. But the executing Court held that as the full amount required to be deposited under Order XXI, Rule 89, had not been deposited in time, the sale could not be set aside. The judgment-debtor appealed to the District Court, and the learned District Judge, while realising the principle laid down in Manaji Kuverji V/s. Aramita (1921) I.L.R. 46 Bom. 171 that the provisions of Order XXI, Rule 89, ought to be strictly complied with before the judgment-debtor can take advantage of the concession, thought that there was an irregularity in drawing up the sale-proclamation as the specific amount payable under the decree was not stated and that it would not be equitable to put the judgment-debtor at a disadvantage by insisting upon the strict compliance of the rule. As there was a small error in calculation, the learned District Judge condoned it as it was a bona fide mistake and set aside the sale, but ordered future interest to be paid to both the auction-purchaser and the decree-holder. It is against that order that the auction-purchaser has come to this Court in revision.

(2.) Order XXI, Rule 89(1), provides : Where immoveable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court,- (a) for payment to the purchaser, a sum equal to five per cent, of the purchase money, and (b) 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.

(3.) Both the application and the deposit must be made withing thirty days from the date of sale and the deposit of the amounts specified in Clauses (a) and (b) is a sine qua non of the right of the judgment-debtor to make such an application. If no such application or an application under Order XXI, Rule 90, or Rule 91, is made, the Court is bound to make an order confirming the. sale and thereupon the sale shall become absolute under Order XXI, Rule 92(1). As observed in Manaji Kuverji V/s. Aramita (1921) I.L.R. 46 Bom. 171 s.c. 23 Bom. L.R. 847 the provisions of Order XXI, Rule 89, must be strictly complied with if the judgment- debtor wants to take advantage of the concession given to him by that rule. It is not disputed that the amount deposited by the judgment-debtor within the period of limitation was short by Rs. 6-3-0 and, therefore, the requirements of Order XXI, Rule 89(1), were not strictly complied with. The executing Court had, therefore, no jurisdiction to entertain the judgment- debtor's application to have the sale set aside, since that rule says that he can apply only on depositing the amounts specified in Clauses (a) and (b).