JUDGMENT
R.K. Choudhary, J.
1. This application in revision is by the claimant applicant against the judgment and the order of the Additional District fudge of Darbhanga in Miscellaneous Appeal No. 6 of 1955 reversing those of the Munsif, first court there, setting aside a sale held on 13-11-1954.
2. The short facts are these, one Musammat Singhasan Thakurain obtained a money decree for maintenance for the years 1358 to 1360 Fasli against
the judgment-debtors-opposite second party. That decree was purchased by the opposite first party (hereinafter to be referred to as the decree-holder) by a sale deed dated 17-7-1953, who started execution of the same in Execution Case No. 137 of 1953 in the court of the Munsif, first court, Darbhanga. By his execution petition, he sought to recover a sum of Rs. 477/8/-, but on calculation by the office, the decretal dues came to be Rs. 468/7/- only, and, accordingly, the sale, proclamation was issued for recovery of the latter amount.
On 11-2-1954, the petitioner preferred a claim under Order 2,1, Rule 58 of the Code of Civil Procedure which gave rise to Miscellaneous Case No. 20 of 1954. It was dismissed on 24-8-1954. On 21-9-1954, an application was filed by some of the judgment-debtors alleging that the decree was wrongly prepared for a larger amount and it ought to be reduced. This gave rise to Miscellaneous Case No. 120 of 1954. During the pendency of this miscellaneous case, the sale was held on 13-11-1954, and the property was sold to the decree-holder for Rs. 478 and a set off was allowed with regard to the same.
On 29-11-1954, the Miscellaneous Case No. 120 of 1954 was allowed and the amount of the decretal dues was reduced to Rs. 415/15/-. On 8-12-1954, the petitioner made an application under Order 21, Rule 89 of the Code of Civil Procedure for setting aside the sale on deposit of the requisite amount. In that application he stated that he was going to file a title suit under Order 21, Rule 63 of the Code of Civil Procedure to establish his right which had been rejected in the proceeding under Order 21 Rule 58 of that Code. That prayer, however, was rejected on that date in limine but on 10-12-1954, the petitioner renewed his prayer by a fresh application, and on this occasion the Munsif allowed the Drayer and the petitioner deposited a sum Rs. 439/15/- by chalan No. 632 of 11-12-1954.
The decree-holder, however, objected to the sale being set aside on the ground that the petitioner had no right to make the deposit and the deposit was insufficient. The Munsif overruled the objection and set aside the sale. But on appeal by the decree-holder-auction purchaser, the Additional District Judge of Darbhanga held that the sale could not be set aside and accordingly passed an order setting aside the order of the Munsif. Being, thus, aggrieved, the petitioner has presented this application in revision in this court.
3. The learned Additional District Judge in reversing the judgment and the order of the Munsif held that the petitioner had no right to make an application under Order 21 Rule 89 of the Code of Civil Procedure and that the deposit so made was insufficient. Mr. Kumar appearing for the petitioner has contended that the learned Additional District Judge has committed an error of law in coming to the above conclusions.
His contention is that the person who having lost his claim under Order 21, Rule 58 of the Civil Procedure Code contemplates to file a suit under Rule 63 of that Order, is entitled to make an application for setting aside the sale under Order 21 Rule 89 of that Code. His further contention is that the amount deposited is sufficient in view of the amendment of the decree. In my opinion, both the contentions are well founded and must prevail.
4. Order 21, Rule 89(1) of the Code of Civil Procedure reads as follows:
“Where immoveable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by
virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in court:
(a) for payment to the purchaser, a sum equal to five per cent, of the purchase-money, and
(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.”
According to the above rule, the person, who may be entitled to make an application to have the sale set aside, must be either owning the property which has been sold in execution of the decree or must be holding an interest therein by virtue of a title acquired before such sale. Mr. Rajeshwari Prasad appearing for the decree-holder, has contended. that the claimant, who has lost his claim, does not either own the property or hold an interest therein and, therefore, he is not entitled to make the application. On the other hand, Mr. Kumar counsel for the petitioner, has submitted an argument that the interest required under this rule does not mean a completed interest but also includes an indicate interest or an interest which one seeks to establish in the Court of law.
His contention is that the word “interest” in that rule should not be given a too narrow meaning as contended by the counsel for the decree-holder, but should be interpreted to have a very wide meaning so as to include every kind of interest which a person claiming to make an application under this rule can establish even by instituting a suit for that purpose. The contention of Mr. Kumar appears to be sound and is supported by two Division Bench decisions of the Madras High Court.
In Dhanammal v. Veeraraghavalu Naidu, AIR 1923 Mad 487 (2), it was held that the purpose of a petitioner who makes a claim under Order 21, Rule 58 to a property attached is to have the attachment set aside and even where the right is negatived, there is nothing to prevent the same person coming (forward and applying to have the sale set aside under Rule 89 for the reason that he holds an interest in the suit property. It was further held that the effect of the dismissal of the petitioner’s claim petition is not to decide finally that he had no interest to ask that the sale should be set aside on payment of the decree amount plus 5 pet cent, into court but only to decide that he has no right to have the attachment raised and that the claim petition could not, therefore, operate as res judicata to prevent the admission of an application to pay the decree amount and to get the property released after the Bale.
In Virish v. Subba Rao, AIR 1949 Mad 687, the properties which were the subject matter of the sale belonged to one Nawab Hasanali Khan Bahadur and were sold by him to (appellant No. 1 and the father of the appellant No. g for a sum of Rs. 45,000. But prior to that sale, there was a suit against this Nawab Hasanali Khan Bahadur and others in which the plaintiff obtained a decree for a sum of money against him. In execution of that decree, the decree-holder attached (these properties, whereupon appellant No. 1 and the father of appellant 2 filed an application under Order 21, Rule 58 of the Code of Civil Procedure stating that the properties should not be attached be-cause the judgment-debtors had no saleable interest in the same.
The executing court allowed the claim, whereupon the decree-holder filed a title suit under the provisions of Order 21, Rule 63 of the Code for
a declaration that the suit properties were liable to be attached in execution of his decree. The trial Court dismissed that suit. But on appeal the High Court held that the decree-holder-plaintiff was entitled to a declaration that the sale deed in favour of the appellant was not binding against him. Thereafter the decree-holder continued the execution proceedings in which the properties were sold and purchased by two of the respondents.
After that, the appellants as well as the alienees from them of different portions of the properties deposited the amount and applied for setting aside the sale under Order 21, Rule 89, of the Code of Civil Procedure. It was contended on behalf of the decree-holder that the claim of the appellants having been negatived in the title suit referred to above, they have no right to make an application under Rule 89 of Order 21. This contention was overruled and Govinda Menon, J., gave the judgment of the Bench, held that the decision in suit under Order 21, Rule 63, holding that the decree-holder is not bound by the sale effected by the judgment-debtor in favour of the claimants, and that therefore, the property is liable to be attached cannot be interpreted to mean that the claimants have been held to have no interest whatever in the property.
He further held that the interest may not be sufficient to be put forward as a shield against the decree-holder’s claim, but the word “interest” in Order 21, Rule 89, has got a very wide import and should bo construed very liberally so that any inchoate right which a party may have over a property may be sufficient “interest” to enable him to apply under Order 21, Rule 89. It was accordingly held that where a suit under Order 21, Rule 63, filed by a decree-holder for a declaration that the suit properties are liable to be attached in execution of a decree is decreed, the unsuccessful claimants under Order 21, Rule 58, are not estopped later on, upon the sale of the property in execution, from applying under Order 21, Rule 89, for setting aside the sale upon depositing the decretal amount plus five per cent.
Referring to the Full Bench decision in Nara-simhachariar v. Raghava Padayachi, AIR 1945 Mad 333 (FB), which was cited on behalf of the decree-holder in support of his contention in that case, his Lordship stated that a decision under Order 21, Rules 58 and 63, becomes conclusive in so far as the parties thereto alone are concerned, and that it is conclusive between the parties to the Suit or their legal representatives so far as the execution of the particular decree is concerned, but where the property is sold in execution proceedings arising out of an entirely different decree the claimant will not be precluded from setting up his title against a purchaser.
It is, therefore, manifest that it is only because a claimant has some interest that he can raise an objection in execution of any other decree and this interest is enough to entitle him to make an application under Order 21, Rule 89 of the Code of Civil Procedure. With great respect to his Lordship, if I may be permitted to say so, I fully agree with the view taken by him. In Mundrika Singh v. Nand Lal Singh, AIR 1941 Pat 204, it was held that where attached property had been sold by auction and a third person within thirty days made an application under Order 21, Rule 89, Civil Procedure Code, on the strength of a contract of sale executed in his favour by the judgment-debtor before the auction sale, he should be allowed to do so as he had locus standi to make the application under Order 21, Rule 89.
The same view as taken in Rabindra Nath v. Harendra Kumar, AIR 1956 Cal 462 in which itj was held that the “title” in Order 21 Rule 89, Civil Procedure Code, includes not merely completed and
perfected title but a title in process of maturity. Both the Patna and the Calcutta cases were cases of contract for sale, which, under Section 54 of the Transfer of Property Act, does not create any interest in the property in question. Nevertheless, that was held to be an interest enough for the purpose of entitling the party to have the sale set aside under Order 21, Rule 89 of the Code of Civil Procedure.
5. As against the above cases, counsel for the decree-holder has placed reliance on the cases o£ Nand Kishore Jha v. Paraoo Mian, 2 Pat LJ 676: (AIR 1917 Pat 159) and Onkar v. Dhansingh, AIR 1926 Nag 10(2). In the Patna case, a person who was out of possession of certain immovable property but was litigating to establish his title thereto made a deposit to have the sale set aside and the sale was accordingly set aside. Subsequently, he lost the suit in which he was endeavouring to establish his title to the property in question. He, therefore, claimed to recover the amount which he had so deposited from the person who was found entitled to the property. It was held that he could not recover the same.
In that connection their Lordships held that such a person was not entitled to make a deposit. That case, therefore, has no application to the facts of the present case. In the Nagpur case, a very restricted meaning was given to the word “interest”, and it was held that a person whose claim under Rule 58 and a suit under Rule 83 have been dismissed cannot apply under Rule 89. I have already observed, as held in the case of AIR 1949 Mad 687 that the word “interest” imports a very wide meaning so as to include such a person to make an application under Order 21, Rule 89 of the Code of Civil Procedure. I am unable to agree with the view taken in the above Nagpur case.
6. The second point raised in the case is as to the sufficiency of the deposit made by the petitioner. As already stated, the sale proclamation was issued for the recovery of Rs. 468/7/- and the sale was held for a sum of Rs. 478, but subsequently after the sale the amount of the decree was reduced by amendment on an application which had been made much before the sale was held. If the deposit had to be made on the basis of this amount, it is undisputed that the amount was sufficient to have the sale set aside. The amount deposited was Rs. 439.
This sum included the amount of Rs. 415/15/-payable to the decree-holder under the amended decree and five per cent, of the sale amount of Rs. 478 to be payable to the auction-purchaser. Accordingly the deposit is sufficient. But if the petitioner had to deposit the entire sum for which the sale was held, plus five per cent. thereon, it is obviously insufficient. The question, therefore is as to what should be the basis for calculation of the amount to be deposited under the above rule which has already been quoted. Under Clause (a) of Sub-rule (1) of that rule, a sum equal to five per cent. of the purchase money has to be deposited for the payment to the purchaser, and in this case, that sum has been deposited.
Therefore, the question of sufficiency or otherwise of the amount of deposit is not concerned, with the amount required to be deposited under this clause. Clause (b) of that sub-rule requires the depositer to deposit for the payment to the decree-holder the amount specified in the proclamation of sale less any amount which may, since the date of such proclamation of sale have been received by him. The argument advanced on behalf of the decree-holder is that the amount specified in the sale proclamation was Rs. 468/7/- and, therefore, the deposit should have been made of that amount.
On behalf of the petitioner, however, it is submitted that the amount required under Clause (b) is for the payment to the decree-holder for the satisfaction of the decretal dues and, therefore, the amount deposited in terms of the amended decree, which alone the decree-holder was entitled to get in full satisfaction of his decree, was sufficient under that clause. I feel inclined to accept this contention. No doubt, Rule 89 requires the amount specified in the proclamation of sale to be deposited. Rule 66 of Order 21 lays down what amount should be specified in the sale proclamation.
According to Order 21, Rule 66(2)(d), the amount that has to be specified in the proclamation of sale is the amount for the recovery of which the sale is ordered; in other words, the decretal dues which the decree-holder is entitled to recover by a sale of the property is the amount which is required to be specified in the sale proclamation. On reading Rule 89 together with Rule 66 of Order 21, it is manifest that the amount that is required to be deposited is the amount which the decree-holder is entitled to recover under the decree. That being] the position, the deposit in this case, according to the terms of the amended decree, is sufficient to have the sale set aside.
The view that I have taken gains support from a decision of the Nagpur High Court in Vithoba v. Dhanaji, AIR 1948 Nag 126. In that case, the property of the judgment-debtor was sold in execution of a money decree, but before the sale was confirmed, the decree was reversed on appeal and, thereupon, the judgment-debtor applied under Order 21, Rule 89 to have the sale set aside and made a deposit of five per cent. under Rule 89(a) for payment to the purchaser, but did not make any deposit under Rule 89(b) for payment to the decree-holder on the ground that, the decree having been reversed, nothing was due to the decree-holder.
Rose J. (as he then was), held that as between the judgment-debtor and the decree-holder, the decree was wiped out and, therefore was under the law a constructive receipt within the meaning of Rule 89(b) by the decree-holder of what was once due to him and that hence the deposit was sufficient compliance with Rule 89. On the above principle in the present case also it may be safely held that to the extent of the amount to which the decree was reduced, the decree-holder would be deemed, under the law, to have received it constructively and, therefore, the petitioner was entitled to deposit the balance only.
7. Payment under clause (b) of Rule 89 need not be payment in cash or payment through court. The payment may be in kind and may fae outside the Court. If the entire decretal amount has been or paid, there is nothing to be deposited within the meaning of clause (b). Similarly, if a portion of the decretal amount has only been paid up, the deposit has to be made only of the balance of the decretal dues. In Laxmansing Baliramsing v. Laxminarayan Deosthan, AIR 1948 Nag 127, it was held that Order 21, Rule 89(1)(b) is satisfied by an unequivocal admission of the decree-holder that his decree was satisfied within thirty days of the date of sale.
In Jyotish Chandra Ghose v. Bireswar Haldar, 39 Cal WN 829, it was held that there was no authority for the proposition that in every case of an application under Order 21, Rule 89, Civil Procedure Code, for setting aside a sale, there must be a cash deposit in court of the amount specified in the sale proclamation and that the amount received by the decree-holder since the sale proclamation being deductible under Rule 89(1)(b) in a case where at the date of the application there is nothing due to the decree-holder By reason of payments made to him out of court since the sale proclamation, whether before or after the sale, the application, accompanied only by a deposit of the compensation money payable to the auction-purchaser, is in order.
In Mahendra Chandra Das v. Parshmani Dasya, 68 Cal LJ 264: (AIR 1938 Cal 252), it was held that if after a sale the judgment-debtor discharged the decretal amount in full out of court to the decree-holder and deposited five per cent of the purchase money to be paid to the petitioner, he was entitled to have the sale set aside by an application under Order 21, Rule 89 of the Code of Civil Procedure. A similar view has been taken in AIR 1956 Cal 462 and in the Full Bench decision of the Madras High Court in Muthuvenkatapathy Reddy v. Kuppu Reddi, AIR 1940 Mad 427 (FB).
8. For the reasons given above, I hold that the petitioner was entitled to make an application under Order 21, Rule 89 of the Code of Civil Procedure for setting aside the sale and the amount deposited on the basis of the amended decree was sufficient to have the sale set aside.
9. In the result, the application succeeds and is allowed with costs, the judgment and the order of the lower appellate court are set aside and those of the Munsif setting aside the sale are restored. Hearing fees Rs. 100.
V. Ramaswami, C.J.
10. I agree.