SRI MAHANT PRAYAGA DOSS JEE VARU Vs. UMADE RAJA RAJAI RAJA DAMARA KUMARA THIMMA NARANIM BAHADUR VARU, RAJA OF KALAHASTI

JUDGEMENT

(1.) The Taluk of Pamur in Kalahasti zamin was sold by the District Court of Nellore on 25 August, 1914, in execution of the decree in C.S. No. 187 of 1912 and was knocked down for Rs. 6,90,000 to one Ramagarji" Neelakanthagarji who made, a deposit of 25 per cent, of the amount of his bid and subsequently defaulted to pay the balance. The property was again put up to sale but did not fetch more than Rs. 1,01,000. The decree-holder in Order 8. No. 187 of 1912 thereupon applied to the Court under Order XXI, Rule 71, for the recovery of the difference between Rs. 6,90,000 and Rs. 1,01,000 from the defaulting purchaser. The District Judge dismissed his application, but the High Court in Annavajhula Venkatachellamayya Garu V/s. Ramagirjee Neelakanta Girjee 43 Ind. Cas. 685 : 23 M.L.T. 9 : 34 M.L.J. 156 : 7 L.W. 159 : (1918) M.W.N. 121 : 41 M. 474 set aside the order of the District Judge and directed him to dispose of the petition according to law.

(2.) Several persons who had obtained decrees against the Raja of Kalahasti applied to the District Court for attachment of the deposit made on 25 August, 1914, and prayed in the alternative for a rateable distribution of the amount under Section 73, C.P.C. The District Judge held that the only person entitled to proceed against the defaulting purchaser was the decree-holder in C.S. No. 187 of 1912 and the other decree-holders Were neither entitled to attach the amount in Court under Order XXI, Rule 52, nor to claim rateable distribution of the same under Section 73 and dismissed their applications. Decree-holders other than decree- holder in C.S. No. 187 of 1912 preferred these appeals against the orders of the District Judge.

(3.) The facts are not disputed. The only question for determination is, are the appellant's entitled to any relief, and if so, what. It is admitted by both the appellants and the respondents that the deposit of 25 per cent, in Court belonged to the defaulting purchaser and that the decree-holder in C.S. No. 187 of 1912 made an application under Order XXI, Rule 71 for the recovery of the deficiency from the defaulting purchaser. It is common ground that the defaulting purchaser is a man of straw and there is no likelihood of any amount being recovered from him. Under Order XXI, Rule 86 if the auction-purchaser makes any default in payment within the, time mentioned, the deposit may, if "the Court thinks fit; after defraying the expenses of the sale, be forfeited to the Government and the property shall be re-sold, and" the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which It may subsequently be sold. Mr. Hughes, the then District Judge of Nellore, held that it was not a proper case for forfeiting the amount of the deposit to the Government and directed that the amount should be in Court pending the disposal of certain petitions.