(CHATHURVEDULA) SUBBAYYA Vs. SIMHA VENKATA SUBBA REDDI

JUDGEMENT

(1.) This Civil Revision Petition arises out of an application put in by a judgment-debtor under Order 21, Rule 89, Civil P.C. The petitioner here was respondent 2 in the lower Courts and was the auction-purchaser of one of the items of property brought to sale in pursuance of a decree. The decree-holder, respondent 1, in the lower Courts, purchased another item of property. The applicant under Order 21, Rule 89, Civil P.C., was the judgment-debtor. He deposited the required five per cent of the purchase money for payment to the petitioner here, respondent 2. He however made no deposit under Rule 89(1)(b), namely, for payment to the decree-holder the amount specified in the proclamation of sale for the reasons that he came forward with an arrangement whereby the decree- holder, who was respondent 1, in the application, agreed to accept a mort gage for Rs. 600 from the applicant, the judgment-debtor, in satisfaction of the amount owing to him under the decree. The petitioner here, respondent 2, objected raising the point that the condition laid down in Order 21, Rule 89, Civil P.C., had not been complied with by reason of the fact that the judgment-debtor had not deposited in Court the amount specified in the sale proclamation. The District Munsif held following the decision of the Privy Council in Nanhelal V/s. Umarao Singh 1931 P.C. 33, that, after the sale had taken place and the right of a third party, namely, the auction purchaser, had intervened, no adjustment or satisfaction of a decree could be set up. That decision certainly does decide that that cannot be done. But it is perfectly clear that their Lordships were not dealing with the position which is arrived at after an application has been put in by a judgment-debtor for the setting aside of the sale under Order 21, Rule 89, Civil P.C. In fact they say that that is the only remedy to be pursued where a sale has taken place if the judgment-debtor seeks to set it aside. Hence we are driven back to the words of Order 21, Rule 89. The amount that has to be deposited in Court for payment to the decree-holder is the amount specified in the proclamation of sale less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2.) The question is, what is the construction to be placed upon "any amount which may have been received by the decree-holder." Is it necessary that the decree-holder must receive the amount in cash or can he receive the equivalent of cash? It was contended very strenuously here that the words of the rule must be strictly read and that the rule permits of no receipt by the decree-holder other than of an amount in cash. I am entirely unable to see any reason for such a construction being placed upon these words. It is a rule which gives a very special indulgence to judgment-debtors or persons interested in the property sold to satisfy the decree amount as stated in the proclamation which is owing to the decree-holder so that he can go away with that amount; and the sale is set aside. The Court is bound, upon the conditions laid down in Rule 89, being satisfied, to set aside the sale. The Court has no option but to do that. It is only fair, therefore that, when the decree-holder has, since the date of the proclamation and before the application is made to set aside the sale, received something which reduces the amount which is owing to him, the judgment debtor should not have to pay the full amount into Court and then withdraw the amount which the decree-holder has received in between those two dates. Obviously the convenient thing is for the judgment- debtor to deduct what the decree-holder has received since the date of the proclamation upto the time of the filing of the application and to pay the net amount which is owing to the decree-holder into Court. I am quite unable to follow the reason for the argument addressed to me upon this point, namely, that there must be an actual receipt of cash and none other. If there has been a receipt of cash which reduces the amount set out in the sale proclamation the auction-purchaser has no cause to complain. He received 5 per cent of the purchase money as compensation under Clause (a), Rule 89. I fail to see what his complaint can be, having received that 5 per cent, if the decree-holder chooses to take some jewels in part satisfaction of the decree, those jewels being an equivalent to a certain sum of money.

(3.) I am unable to see that the auction-purchaser has any grievance if the decree-holder chooses to forgo the whole of the amount owing to him under the decree. In answer to a question put by me to the learned Counsel for the petitioner whether he contested the position that it was open to a decree-holder to waive the whole of the decree amount and whether under these circumstances the judgment-debtor would still have to deposit the full amount stated in the sale proclamation in Court, I understood his answer to be that it would be unnecessary, and that he would then not have to deposit any amount in Court. The position therefore is that the decree-holder can waive the whole of the amount in which case the judgment-debtor need pay nothing into Court in respect of the claim. The decree-holder can, if he likes, accept a lesser amount in which case the judgment-debtor need only pay the difference into Court. The decree-holder can agree to receive a part of that which is owing to him in which case the judgment-debtor has to deposit the balance into Court. I am quite unable to see why a decree-holder cannot be permitted to receive anything which to him is an adequate equivalent of the amount which is owing to him under the decree by the judgment- debtor.