VANGAYIL MADHAVAN NAYANAR Vs. VPARAMESWARA AYYAR

JUDGEMENT

(1.) The facts necessary for the disposal of the above civil miscellaneus appeals and civil revision petition can be shortly stated. In O.S. No. 15 of 1933, on the file of the District Judge of Morth Malabar, which was a suit for sale on a mortgage, a preliminary decree was passed on 13 September, 1934, followed by a final decree on 27 January, 1936. The mortgaged property was sold in execution and purchased by one Vengayil Madhavan Nayanar who is the appellant in the civil miscellanous appeals and the petitioner in the civil revision petition and who will hereinafter be referred to as the appellant. On 16 November, 1944, the first defendant in the mortgage suit applied in E.A. No. 52 of 1944 under Order 21, Rule 90 of the Civil P. C. for setting aside the sale. This application underwent several adjournments. On 6 March, 1945, the decree-holders applied in E.A. No. 25 of 1945 under Order 21, Rule 2 for recording full satisfaction of the decree alleging that the first defendant agreed to pay and the decree-holders agreed to receive Rs. 6,750 in full satisfaction of the decree, that Rs. 4,695 out of the said amount was paid to the decree-holders by the first defendant that in discharge of the balance of Rs. 2,055 both parties agreed that an order for payment should be made in favour of the decree-holders of the sum deposited as security by the first defendant in E.A. No. 52 of 1944. In what is described as a "statement" filed by the first defendant's advocate on 8 March, 1945, it was mentioned that "Rs. 231-3-0 made up of poundage and sale commission due to the auction purchaser as per the auction sale held in O.S. No. 15 of 1933 was paid to the advocate for the auction purchaser by the first defendant's advocate." The auction purchaser's advocate endorsed on it that he received the amount.

(2.) On 10 March, 1945, the learned District Judge directed that full satisfaction of the decree should be recorded and that the sale should be cancelled, overruling the auction purchaser's objection which, in the District Judge's language, was to the effect: That the private adjustment of the decree ought not to be recognised but that the full decree amount due must be deposited in Court and then withdrawn by the decree-holders and that the decree-holders receiving the amount otherwise must not be upheld.

(3.) The learned District Judge characterised this objection as a technical one, after referring pointedly to the fact " that the auction purchaser has been paid his commission of five per cent and poundage." While noticing that Order 34, Rule 5. of the Civil Procedure Code prescribes that the defendant should deposit in Court the sum due as per the decree, the learned District Judge observed that it does not specifically prohibit private adjustments of the decree by any arrangement arrived at between the judgment-debtor and the decree-holders. The learned District Judge was of the opinion that this principle was established in Muthuvenkatapathi Reddi V/s. Kuppu Reddi in regard to deposit in Court required by Order 21, Rule 89 and held that the same principle must govern the requirement as to deposit under Order 34, Rule 5.