SADASHEO KARTATKAR Vs. NARAYAN

JUDGEMENT

(1.) THE facts of this case are sufficiently clear from the lower Courts' orders. I do not think the learned District Judge was correct in applying the decision in Nilkanth v. Yeshwant A.I.R. 1922 Nag. 248 to the facts of the present case. In the first place, it is perfectly clear that the total amount liable to be deposited under Rule 89, Order 21, Civil P.C. was not deposited within 30 days of the sale. I do not think there is any ground for supposing that in this connexion the judgment-debtor, non-applicant 1, was misled by the mistake in the proclamation of the sale. The provisions of Rule 89, Order 21 are to be strictly complied with, being of the nature of an exceptional concession allowed to the judgment-debtor. Here, there was no strict compliance with the rule in question. Still further, there was no unequivocal acceptance by the decree-holder of the deposit so made. On the contrary, the order-sheets of 26th April 1926 and 26th July 1926 show that the judgment-debtor was only allowed to deposit the amount at his own risk, and the money, so to speak, was only provisionally received. I cannot, therefore, regard the decree as having been satisfied and even were one to adopt the somewhat wide principle laid down by Kotwal, A.J.C., in Nilkanth v. Yeshwant A.I.R. 1922 Nag. 248, above quoted, I do not think it can be predicated of the present case that the Court's power to execute the decree had ceased. Mac Nair, A.J.C, in his judgment in Kabiruddin v. Krishnarao A.I.R. 1928 Nag. 136, has seen cause to differ from the decision of Kotwal, A.J.C. which is an officially reported case, but I do not think it necessary in the present case to go into the further questions involved for the simple reason that, in my opinion, Rule 89 must be strictly construed, and in this case there was no complete compliance with the provisions contained therein.

(2.) I do not further think that the case was one in which the Court could rightly have had recourse to the provisions contained in Section 151, Civil P.C. nor did, in my opinion, the equities of the case call for any such resort to the provisions mentioned, even were this course permissible. In my opinion, therefore, the case was one in which the Court was bound to: confirm the sale. In supposing that it had authority not to do so and instead, to accept the deposit made by the judgment-debtor, it exercised a jurisdiction which was not vested in it and it is, in my opinion, the duty of this Court to interfere. The facts of the decision in Yad Ram v. Sundar Singh A.I.R. 1923 All 392, which has been quoted on behalf of the non-applicant 1, were highly peculiar and I am unable to accept the contention offered by the latter that the present application for revision does not lie.