1. This is an execution first appeal by the auction purchaser decree-holder against an order of the Court below setting aside a certain sale under the provisions of Order 21, Rule 89, Penal Code. It is not necessary to state the facts in greater detail than is necessary to make our judgment intelligible. It appears that Bibi Ahmadi Begam obtained a decree against Ishaq Muhammad for a large sum of money and in execution of that decree certain properties belonging to the judgment-debtor were advertised for sale. On 23rd June 1931, the judgment-debtor brought a sum of Rs. 5,000 in Court and under the orders of the Court the said sum was received towards the decretal amount. We have on the record of this case the tender evidencing such a deposit. The sale however was held on that very date because certain communications that were intended to reach the amin could not reach in time. On 22nd August 1931, however this sale was set aside and a fresh sale was ordered to be held on 24th August 1931. In spite of the efforts of the judgment-debtor to get the sale postponed, the sale was held on that date and the property was purchased by the decree-holder for Rs. 39,000. On 14th September 1931, the judgment-debtor applied under Order 21, Rule 89 for setting-aside the sale and tendered in Court the sum of Rs. 71,597-4-9. On receipt of this amount the Court below set aside the sale.
2. It is true that the provisions of Order 21, Rule 89, are by way of indulgence to the judgment-debtor, and they should therefore be strictly complied with, and the question that we have got to decide is whether this sum coupled with the prior sum of Rs. 5,000 deposited at an earlier date is sufficient under the provisions of the above order for the setting aside of the sale. A subsidiary question also arises whether the sum of Rs. 5,000 can at all be taken into account. It is conceded by the learned Counsel for the appellant that if the earlier sum of Rs. 5,000 is taken into account the deposit is full. It is however argued on his behalf that the aforesaid sum should not be taken into consideration inasmuch as that sum had not been received by the decree-holder. In support of his contention he has cited the case of Totaram Chunilal v. Chhotu Motiramshet A.I.R. 1923 Bom. 299. The judgment in that case does not state the facts but it simply follows an earlier decision reported in Trimbak Narayan v. Ramchandra Narsingrao (1899) 23 Bom 723. The facts of that case were that two properties were sold in different lots and the judgment-debtor applied to have the sale of one item of property set aside and he wanted to have the sale proceeds of the other lot to be taken into account along with the deposit that he actually made for setting aside the sale of the property for which he had applied, and it was held by the learned Judges that this could not be done in as much as mere payment of sale proceeds into Court was not a sufficient compliance with “the requirements of Section 310-A, Civil P.C. It is true that towards the end of their judgment they say that:
what the action contemplates is evidently an actual receipt by the decree-holder, and we think that nothing less than that will satisfy its requirements,
but in an earlier portion they say:
It cannot be said that the decree-holder has received the sale proceeds of the munjari property when in point of fact they have only been paid into Court, and the decree-holder may never receive them at all, because the purchaser may become entitled to receive the money back under the provisions of Section 315.
3. It is thus clear that the learned Judges based their decision on the ground that the sale proceeds in Court may not become available to the decree-holder if the sale was ultimately set aside. The learned Counsel for the appellant also relies on the case of M. Karunakara Menon v. M. Krishna Menon (1916) 39 Mad 429. The facts of that case were different and it was held therein that a judgment-debtor who applies under Order 21, Rule 89 cannot take credit for any amount paid by a co-judgment-debtor who has not joined him in the application. At p. 431 their Lordships say:
If the moneys had boon deposited by the applicants themselves, such moneys can be taken to supplement the deposit actually made at the time of the application to set aside the sale.
4. It is cleear therefore that a distinction has been drawn in that case between “actual receipt” and “deposit” in Court. We are of the opinion that when money has been deposited in Court and that money is available to the decree-holder without any obstacle of law then that deposit amounts to receipt by the decree-holder. In the case of Kripa Nath Pal v. Ram Lakshmi Dasya (1897) 1 CWN 703, Amir Ali, J. says:
As at present adviced I am of opinion that the word received in Section 310 A ought to be construed to mean sums of money either actually received by the decree-holder or which he is in a position to credit to his account.
5. We are in perfect agreement with this view of the law. Another point taken by the appellant is that he is entitled to a sum equal to 5°/o of the purchase money. The Court below repelled this contention of the decree-holder on the ground that he, being the auction purchaser, is not entitled to the 5%. It is well settled that if the decree-holder be the purchaser he is entitled to the 5% on the purchase money, vide the Full Bench case of Chundi Charan v. Bankey Behari Lal (1899) 26 Cal 449, and indeed it was conceded before us that the judgment of the Court below on that point was wrong. The result is that we allow this appeal to this extent that we hold that the decree-holder is entitled to obtain from the amount deposited in Court a sum equal to 5% of the purchase money also. As the amount deposited together with the Rs. 5,000 tendered on an earlier date is sufficient to meet every claim, the sale will be set aside. The parties will pay and receive costs in proportion to failure and success. We do not allow any interest to the appellant on the 5% because that money has always remained in deposit in Court to the credit of the decree-holder. The judgment-debtor and the mortgagee are entitled to withdraw any surplus after the above calculation.