KANNURI VENKATA CHALAPATHI RAO Vs. DEVINENI KANCHAYYA

JUDGEMENT

(1.) The appellant was the judgment-debtor in O.S. No. 354 of 1936 on the file of the Court of the District Munsiff of Gudivada. That was a suit for money. There was first an ex parte decree on 16 July, 1937, but on the application of the appellant the ex parte decree was set aside. As a condition of the setting aside of the ex parte decree the judgment-debtor was directed to give security of immoveable property for the satisfaction of any decree which may be passed in the suit after trial. The appellant accordingly executed a security bond on 5th November, 1937, giving the prescribed security. The suit was then tried and again resulted in a decree in favour of the plaintiff, who is the respondent in this civil miscellaneous second appeal, on 15 December, 1937. The respondent executed his decree against the property which was given as security. He did not attach that property and it is fairly clear from the execution record that he was intending to and believed that he could enforce his security in the course of the execution proceedings themselves. The property which was given as security was sold on 22nd April, 1940, the respondent himself being the purchaser for a sum of Rs. 1,855. There was an application by the appellant under Order 21, Rule 90 which was dismissed.

(2.) On 12 November, 1943, the appellant applied in E.A. No. 1076 of 1943 under Order 34, Rule 5 of the Civil Procedure Code for the setting aside of the sale. He deposited the amount required to be deposited under that rule. The application was dismissed by the District Munsiff of Gudivada and an appeal against that order was also unsuccessful. Hence the present civil miscellaneous second appeal.

(3.) The main point that arises for determination is whether the appellant can avail himself of the provisions of Order 34, Rule 5. That rule provides that before the confirmation of a sale made in pursuance of a final decree passed in a mortgagee's suit for sale the mortgagor-defendant may deposit into Court the amount mentioned in the decree together with 5 per cent, of the amount of the purchase money and have the sale set aside. Order 34, Rule 5 applies no doubt only to a mortgage, but under Order 34, Rule 15 all the provisions contained in the Order which apply to a simple mortgage are made applicable inter alia to a charge falling under Section 100 of the Transfer of Property Act " so far as may be." The appellant's counsel argues that this is a charge within the meaning of Section 100 of the Transfer of Property Act and that by the combined operation of Order 34, Rules 5 and 15 his client can have the benefit of the procedure laid down in the former rule. There is no doubt that the security bond created a charge over the immoveable property.