DEOPATI KUER Vs. MAHABIR PRASAD SINGH

JUDGEMENT

(1.) This appeal by two private purchasers from the judgment-debtor turns upon the proper construction to be placed upon the amendment to Sub-rule (1) of Rule 89 of Order 21, Civil P.C., as made by the Patna High Court.

(2.) The facts are these. On 21-10-1943 the judgment-debtor executed a sale deed in favour of the appellant Deopati Kuer with regard to a property which would be styled as lot No. 1, but the deed was not registered. On 241-1944 the properties of the judgment-debtor in lot No. 1 and lot No. 2 were sold in execution of a money decree and the respondent became the auction-purchaser. Lot No. 2 was sold to Babu Kamla Prasad Singh, the second appellant by the judgment- debtor after the sale of 241-1944. On 25 January, Deopati Kuer filed a petition before the Court, which held the sale, that she should be allowed to make a deposit under Order 21, Rule 89, Civil P.C, of a sum of Rs. 410 together with compensation of Rs. 20 so that the sale of lot No. 1 which had been sold in auction may be set aside. The Court directed the applicant to produce her kebala at once, but instead of producing it she only filed a registration ticket. On 5-2-1944, the Court being informed that the kebala had not yet been registered directed the applicant to state if she had paid any money for the purchase, and if so to produce the money receipt. Upon this Deopati Kuer produced an unregistered Bai-beyana deed together with a receipt and a petition that the original kebala may be sent for from the registry office and to allow her to deposit the decretal amount to the extent of the share of judgment-debtor 1 so that the sale of property No. 1 might be set aside. The Court after hearing the applicant came to the conclusion that the kebala had not been registered as the judgment-debtor was reported to be evading appearance before the Sub-Registrar, and, therefore, under Section 54, T.P. Act, the mere execution of the kebala did not create any interest in or charge over the property covered thereby, but in this case, however, mote things have happened besides the contract and even if the applicant cannot be considered to have got a charge over to property, he must be deemed to have acquired some interest in the property which will be affected if the sale of the property is confirmed and he is not allowed to deposit as prayed for before the expiration of 30 days from the date of the sale. As the auction-purchaser had not been heard, he on 10-2-1944 put in a petition objecting that Deopati Kuer had no locus standi to deposit the decretal money and compensation and so the order of 8-2-1944 may be recalled. On 12-2-1944 the order of the Court states that the entire decretal amount with compensation was sought to be deposited by two chalans and the auction-purchaser objected to the sale being set aside unless the kebala showing purchase by the applicant is produced, but as the kebala was filed in the registry office for compulsory registration by the judgment-debtor, the Court directed that the amount should be kept in deposit and if in course of one month from that date the applicant produced the kebala the sale would be set aside. On the other hand if the kebala had not been registered, the sale would be confirmed and the amount in deposit would be given back to the applicant. The amount having been deposited on 24 February the decree-holder applied on 20 March that he might be allowed to withdraw the amount, but the Court rightly directed that this should await the confirmation of the sale.

(3.) On 4-4-1944 the Court observed that the application of Deopati Kuer had been pending for a long time for production of the kebala but she had taken no steps and was absent on repeated call. Her application was, therefore, rejected for default.