JOTISH CHANDRA GHOSE Vs. BIRESWAR HALDAR OF BHATPARA

JUDGEMENT

(1.) This is an application for the revision of an order allowing setting aside an auction sale under the following circumstances. There was a mortgage decree in execution of which the present petitioner auction-purchased certain properties on May 16, 1934, for a sum of Rs. 4,100. He duly deposited Rs. 1,025 and the balance in due course on May 29, 1934. In the meantime on May 22, 1934, the judgment-debtor opposite parties made an application under Order XXI, Rule 90 of the Civil P. C. to have the auction sale set aside. On June 14, 1934, the decree-holder and judgment-debtor opposite parties filed a joint application under Order XXI, Rule 89 of the Code stating that the judgment-debtor had paid to the decree-holder the amount specified in the sale proclamation and was executing in favour of the decree-holder a deed of sale for Rs. 4,200 in respect of the property in execution and further had deposited Rs. 205 being 5 per cent, compensation payable to the auction- purchaser. It was accordingly prayed that the sale might be set aside. This application was allowed. It is said in para. 3 of the present petition that the deposit of the. compensation money was not made on the date of the application but that it was made on June 18, 1934. This statement is challenged in the counter-affidavit filed by the opposite parties and it appears to be wrong. The money was actually deposited on June 14, 1934, the very date of the application under Order XXI, Rule 89 and so the deposit was well within 30 days from the date of the sale, as required by r 92. On the same date an application was filed by the judgment-debtor intimating that he would not proceed with the miscellaneous case under Order XXI, Rule 90. It is said in para. 4 of the present petition that this application was made after the joint application under Rule 89. This statement is also challenged in the counter- affidavit and in fact it is not correct. It appears that the application to withdraw the case under Rule 90 was filed before the application under Rule 89 was filed on the same date. The conveyance referred to in the joint petition was also executed On the same date. The learned Subordinate Judge by bis order dated June 23, 1934, found that the judgment-debtor had deposited in Court for payment to the auction-purchaser the sum equal to 5 per cent, of the purchase money, that the decree-holder had received the entire amount specified in the sale proclamation, and that no further deposit in his favour was necessary. In these circumstances he allowed the application under Order XXI, Rule 89, and directed the sale to be set aside. An appeal was preferred by the auction-purchaser to the Additional District Judge of 21-Parganas, but it was dismissed. Hence the present application by the auction-purchaser.

(2.) It is contended that the joint applies-lion aforesaid purporting to be under Order XXI, Rule 89, did not comply with the conditions laid down therein inasmuch as there was no cash deposit of the amount specified in the proclamation of sale nor was payment made before the date of sale, It is contended that in accordance with the terms of Rule 89, the amount to be paid to the decree-holder must be deposited- in cash and that this must be done before the date of sale. As regards the second point, it may be pointed out that Clause (6) of Sub-rule (1) of Rule 89 requires that the payment must be of the amount specified in the proclamation of sale less any amount which may, since the date of such proclamation, have been received by the decree-holder. While the application under Rule 89 is at a stage subsequent to the sale, it is necessary that it should be made before the confirmation of sale under Rule 92. But it is not expressly laid down nor does it follow, that the payments to the decree-holder, which it is permissible to deduct before deposit, must be made before the date of the sale. As regards the first point, that the payment must be made in cash, this is contemplated by the rule but the amount which may since the date of the proclamation of the sale has been received by the decree-holder is allowed to be deducted and it is conceivable that in a particular case the entire amount has been so received, in which case the balance to be deposited in Court will be nil. Furthermore, it is noteworthy that the amount which may thus be deducted must have been received by the decree-holder. This is a question of fact which has got to be found by the Court and it is open to the Court to accept an admission by the decree-holder himself. It is contended for the petitioner that the expression received by the decree-holder" means "received through the Court". The answer to that is that there is no express provision which requires the judgment-debtor to make a payment to the decree-holder through Court. In certain circumstances, as for instance, in order to obtain a stay of sale the judgment-debtor may make a deposit in Court. But it does not follow that the amount should be received by the decree-holder. This was pointed out in the cases of Trimbak Narayan V/s. Ramchandra Narasingrao 23 B 723 and Kavuna Kara Menon V/s. Krishna Menon 39 M 429 : 27 Ind. Cas. 952 : 2 LW 196 : 28 MLJ 262. It is also necessary to remember that the payment of the amount specified in the sale proclamation which is a necessary condition under Rule 89 is a different thing from the payment or adjustment of the decretal amount out of Court which is contemplated by Order XXI, Rule 2. The latter comes at an anterior stage of. the proceeding before the interests of a third party auction-purchaser have supervened. For the petitioner stress has been laid on the case of Nanhelal V/s. Umrao Singh as being an authority in support of the petitioner's contention that in the present case the provisions of Rule 89 have not been correctly applied. In that case the auction-purchaser who was appellant before their Lordships made the auction-purchase on September 15, 1923. Before the confirmation of the sale on September 24, 1923, the judgment-debtor respondent filed an application under Order XXI, Rule 90, to have the sale set aside on the ground of fraud and irregularity. On June 28, 1924, the decree-holder made an application alleging that the judgment-debt had been adjusted as between him and the judgment-debtor who had executed a mortgage in his favour to cover the outstanding amount of debt and that in consideration thereof the decree-holder had agreed to accept payment by instalments. It was accordingly prayed that the adjustment might be recorded and certified and the property might be released. It is clear, therefore, that there had been no actual payment of the decretal debt. On January 19, 1925, the Subordinate Judge delivered a combined judgment on the application of the judgment-debtor and that of the decree-holder. He dismissed the application of the former under Order XXI, Rule 90, but he did not proceed to confirm the sale. As regards the decree-holder's application, he held that the mortgage was a collusive transaction and so he dismissed that application. Thereupon the judgment-debtor appealed and the question that was raised was whether the Court was bound to enter satisfaction under Order XXI, Rule 2 which was expressly mentioned. The Appellate Court held in the affirmative, whereupon the auction-purchaser applied in revision to the Judicial Commissioner who eventually dismissed the application after reference to a Full Bench decision in another-case. It is clear on these facts that there was no cash payment of the decretal amount, and at the time of the application the decretal amount had not been satisfied. Furthermore, it is also clear from the report of the case at pages 382 and 383 Pages of 35 C W N--[Ed] that there was no 5 per cent, deposit to the credit of the auction-purchaser. There is a remark of Sir John Wallis that the District Judge had ignored the fact that the auction-purchaser was entitled to 5 per cent, as solatium under Rule 89. The application, properly speaking, was one for certifying an adjustment of the decree under Order XXI, Rule 2. There was no question as to whether any amount had been previously received by the decree-holder and so the latter provision "less any amount which since the date of such proclamation have been received by the decree-holder" in Clause (b) Sub-rule (1), Rule 89 was not considered at all. In the circumstances their Lordships point out that Order XXI, Rule 2 which provides for certification of adjustment out of Court contemplates a stage in the execution proceedings when the matter lies only between the judgment-debtor and the decree-holder, but that after the sale has been held, the judgment-debtor can get rid of it through satisfaction of the decree under Order XXI, Rule 89 by depositing in Court the amount prescribed therein within the time allowed. It would be stretching the meaning of this decision too far to, say that in every case there must be a cash deposit of the amount specified in the proclamation of sale where in fact there was no such amount due at the time of the application by reason of previous payments since the date of the proclamation. That is what has happened in the present case. The learned Advocate for the petitioner also referred to the case of Bibi Sharofan V/s. Muhammad Habib-ud-din 15 CWN 685 : 10 Ind. Cas. 148 : 13 CLJ 535. That was a case in which there was a mortgage decree which was executed on July 13, 1909, and the auction-purchaser opposite party made his purchase on September 20, 1909. The judgment-debtor, who was the petitioner in the case, applied to make deposit on October 9, 1909, but before that, on October 5, 1909, he made an application under Order XXI, Rule 90. Thereafter the judgment-debtor made payment to the decree-holder who certified the payment to the Court and the sale was set aside on April 12, 1910, as having been held irregularly and the application under Order XXI, Rule 90, was accordingly granted. On appeal by the auction-purchaser the District Judge reversed the order and directed the sale to be confirmed. Then there was an application in revision by the judgment-debtor and the question was, whether the appeal by the auction-purchaser was competent the decree-holder having consented to have the sale set aside. It was held that the auction-purchaser was. entitled to be heard before an order was made under Order XXI, Rule 92 because, having made his auction-purchase, he had acquired certain privileges and also incurred liability as under Rule 86. On the facts of that case, therefore, the decision does not help that present argument in support of the petitioner.

(3.) It may be mentioned here that for the petitioner it was also contended that under Sub- rule (2) Rule 89, the judgment-debtor was not entitled to have the sale set aside because he had not previously withdrawn the application under Order XXI, Rule 90. In support of- this, attention was drawn to the fact that this application was disposed of by the Court subsequent to the disposal of the objection under Section 89. But as a matter of fact, as already mentioned, the application under Rule 90 was filed before the application under Rule 89 was filed. So the contention has no foundation in fact. Our attention has not been directed to any case which is on all fours with the facts of the present case. But having regard to the terms of Rule 89 which are plain enough and having regard to the facts found by Courts below, we consider that the application to set aside the sale on deposit under Rule 89 was correctly made and the decision cannot be challenged in revision on any good grounds.