MADHURI SARAN Vs. BISHAMBHAR NATH

JUDGEMENT

(1.) This is a judgment-debtor's appeal. Certain property was advertised for sale and the estimated value of that property as entered in the sale proclamation by the Court was Rs. 8,000. On the 20 of April 1926, the property was actually sold for Rs. 14,000 and the decree-holder purchased the property at the auction, The amount, which was due to the decree-holder as entered in the sale proclamation, was Rs. 13,671-6-4. On the 17 of May 1926, the judgment-debtors executed a mortgage in favour of Ram Kumar and others of the share sold at auction on the 20 of April 1926, for a sum of Rs. 10,000. On the 18 of May 1926, two applications were presented to the Subordinate Judge. One was by Ram Kumar and others as mortgagees, who tendered and deposited a sum of Rs. 10,000 and in their application stated that if the judgment-debtor did not deposit the balance payable and if the sale was not set aside, this sum might be returned to Ram Kumar. The judgment-debtors in their application stated that a sum of Rs, 10,000 had been deposited by the mortgagees under a tender and that they were depositing a sum of Rs. 4,810 and prayed that the sale be set aside and also stated that the total amount was more than the amount payable under the law to the decree-holder. They, therefore, prayed that the remaining amount might be returned to them.

(2.) The office reported for the information of the Judge that the amount deposited was correct and that out of that total amount Rs. 10,000 had been deposited by the mortgagees and Rs, 4,810 by the judgment-debtors, On notice of this application of the judgment-debtors having been served on the decree-holder, they objected on the ground among others that there was no compliance of Order 21, Rule 89 inasmuch as the whole amount had not been deposited by the judgment-debtors and that the mortgagees had no locus standi to make any deposit. They further urged that the deposit being a conditional deposit could not be treated as a valid deposit. The learned Subordinate Judge has declined to set aside the sale by his order of the 14 of June 1926, which is under appeal. He has held: If there had been a joint application cm behalf of the judgment-debtor and the mortgagees then there would not have been any difficulty.

(3.) He has also held that the deposit made by the mortgagees was not on behalf of the judgment-debtors.