L A KRISHNA AIYAR Vs. ARUNACHALAM CHETTIAR

JUDGEMENT

(1.) The facts in these appeals are that the appellant L.A. Krishna Aiyar obtained a decree against one S.R. Sabramania Aiyar and his mother on 20 January, 1919, the suit being upon two promissory notes. Previously he had got an attachment of S.R. Subramania Aiyar's immoveable property on 18 October, 1918. Whilst this attachment was in force, Subramania Aiyar executed a mortgage of his immoveable properties on 7 November, 1918 for Rs. 50,000 directing the mortgagee to pay Rs. 4,000 to the plaintiff-appellant and this sum was allowed as a credit when the decree in the suit was passed. On the date of the decree, the decree-holder, the appellant here, applied for the arrest of Subramania Aiyar but that petition was dismissed. He then filed a second execution petition for the sale of the properties attached before judgment. That petition was also dismissed, this time for the decree-holder's default, on 19 April, 1922. He filed a third execution petition (E.P. No. 35 of 1924) for the sale of the properties. No fresh attachment was effected. Section R. Subramania Aiyar filed an objection petition saying that execution should be not allowed without fresh attachment. His objection was disallowed and the sale was held on 9 February, 1925 and the appellant, the decree- bolder, became the purchaser of the property in Court auction. S.R. Subramania Aiyar appealed to the High Court against the order disallowing his objection to the execution. Pie also applied in E.A. No. 115 of 1925 under Order 21, Rule 90, Civil Procedure Code to set aside the sale. A few days later, namely, on 4 March, 1925 the assignee from the mortgagee, Arunachalam Chettiar, applied in E.A. No. 181 of 1925 to set aside the sale under Order 21, Rule 89, Civil Procedure Code depositing Rs. 3,961-3-0 in Court. Meanwhile the High Court held that the attachment before judgment fell with the dismissal of the decree-holder's petition for default on 19 April, 1922 and that the property sold was not under attachment but dismissed the appeal leaving the matter to await the decision in E. A. No. 115 of 1925. Then the assignee mortgagee Arunachalam Chettiar filed O.S. No. 22 of 1924 in the Subordinate Judge's Court of Coimbatore on the assigned mortgage and got a decree on 28th August, 1925 and while the two petitions, already referred to, to set aside the sale were pending, Arunachalam Chettiar filed O.S. No. 2134 of 1925 in the District Munsif's Court, Coimbatore, for a declaration that he had priority over the rights acquired by the auction purchaser and for stopping the execution proceedings and preventing the decree-holder from drawing the money and on 27 June, 1927, got a decree only in respect of the priority claimed, the claim for the injunction and other consequential prayers being disallowed. There was an appeal against that decree by the appellant here but that was dismissed. Meanwhile on 19 July, 1926 E.A. No. 115 of 1925 the application under Order 21, Rule 90, Civil Procedure Code was allowed and the sale was set aside and on the same day E.A. No. 181 of 1925 the application under Order 21, Rule 89, Civil Procedure Code was ordered, the following order being made: This third party is entitled to deposit as he is interested in the property sold. Correct amount has been deposited in time. Sale set aside". As regards the third E.P. No. 35 of 1924, the following order was made; viz.: Sale set aside as per E.A. Nos. 115,"and 181 of 1925. Sale held without proper proclamation is not valid. Petition dismissed. See separate order.

(2.) The decree-holder, the appellant, eventually filed E.A. No. 15 of 1931 for the issue of a cheque for Rs. 3,961-3-0--the amount deposited in Court under Order 21, Rule 89, Civil Procedure Code--but Arunachalam Chettiar, the holder of the decree in the mortgage suit and the depositor of the amount under Order 21, Rule 89, Civil Procedure Code, filed a similar petition for the payment back of the amount deposited by him alleging that the sale was set aside under Order 21, Rule 90, Civil Procedure Code and that he was therefore entitled to get back the amount deposited by him. The learned Principal Subordinate Judge held that the appellant, the decree-holder auction-purchaser, had no right to the money and that Arunachalam Chettiar had the right to withdraw the money deposited by him. Hence these appeals.

(3.) The case put forward in the Lower Court and here on behalf of Arunachalam Chettiar, the respondent, was that he deposited the money in Court subject to a condition or under protest and it was not meant to be there taken by the decree-holder unconditionally. In his affidavit in support of the petition he stated that he had got an interest in respect of the property sold in auction but that, as there had been no fresh attachment after the dismissal of the appellant's execution petition and the auction sale was without any fresh attachment, it was not legally valid. He further stated: The said legal objection is always valid in my case and I can act upon it. Yet I have paid the amount now in connection with the said auction sale.