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Madras High Court
M. Karunakara Menon And Anr. vs M. Krishna Menon And Four Ors. on 18 January, 1915
Equivalent citations: (1916) ILR 39 Mad 429
Author: S Ayyar
Bench: Spencer, S Ayyar


Seshagiri Ayyar, J.

1. It is with considerable hesitation that we have come to the conclusion that the learned Judge’s order is wrong. It has to be noticed that the provision in Order XXI, Rule 89, is in the nature of an indulgence to the judgment-debtors Before the sale takes place, he has every opportunity of avoiding it by satisfying the decree. Practically a locus paenitentiae is given him after the conclusion of the sale to retain his property if he complies with certain conditions. Consequently Courts are bound to see that the provisions of law in this respect are very strictly conformed to. In this case we are not satisfied that the judgment-debtors have complied with the requirements of the law. Under Rule 89, the judgment-debtor should deposit the money due under the proclamation of sale minus the amount “which may since the date of such proclamation of sale, have been received by the decree-holder.”

2. Mr. Ramachandra Ayyar argues that monies deposited by the fourteenth defendant and the first defendant should be regarded as monies received by the decree-holder, Neither of them has joined in the application to set aside the sale. If the monies had been deposited by the applicants themselves, such monies can be taken to supplement the deposit actually made at the time of the application to set aside the sale. But when the monies have been paid in by another and have not been received by the decree-holder, it seems impossible to suggest that they are. either a part of the deposit or that they must be deemed to have been received by the decree-holder. None of the decided cases have gone this length. Trimbak v. Ramchandra (1899) I.L.R. 23 Bom. 723 is distinctly against it. So also is Kripa Nath Pal v. Ram Lakshmi Dasya (1897) 1 C.W.N. 703. In the decision in Ramanatha Ayyar v. Subramania Ayyar Civil Miscellaneous Appeal No. 82 of 1911 referred to by Mr. Justice Tyabji, the money in Court deposit was due to the judgment-debtor and his co-parcener who assented to the course taken by him. The learned Judges held that the non-compliance with the formality of taking it back and depositing it with the balance due under the proclamation of sale was unnecessary. Lakshmi Ammal v. Sankaran Nair (1913) 24 M.L.J. 205, only decided that where a decree-holder had agreed to give up a portion of the decree amount, ha was not entitled to insist upon the deposit or payment of the full amount mentioned in the proclamation of sale. The suggestion is that what was given up must be regarded as having been received, The decision in Vedala Lakshminarasimha Charyulu v. Pacha Lakshmiamma (1912) M.W.N. 756, does not take the matter any further. In that case an agreement by the decree-holder to set off a portion of the decree amount was held to amount to payment. In the present case, the persons who made the previous deposits are not the applicants; and although we do not agree with Mr. Rosario’s contention that every judgment-debtor who has separate interests in the property advertised for sale should join in applying to set aside the sale, we are of opinion that it is not open to the applicants to claim that the monies deposited by the non-applying judgment-debtor3 should be regarded as theirs. We must therefore hold that the application of the respondents is not in accordance with Order XX, Rule 89, of the Civil Procedure Code, 1908.

3. The order appealed against must be set aside and that of the lower Appellate Court must be restored. The parties will bear their own costs in this appeal.

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