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Madras High Court
M. Karunakara Menon And Anr. vs M. Krishna Menon And Ors. on 18 January, 1915
Equivalent citations: (1915) 28 MLJ 262


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 satis-fying the decree. Practically a locus penitentiae 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 satified 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.” Mr. Ramachandra Aiyar argues that the monies deposited by the 14th defendant and the 1st 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 Narayan v. Ramchandra Narasinga Rao (1899) I.L.R. 24 B 723 is distinctly against it. So also is Kripa Nath Pal v. Ram Lakshmi Dasya I.L.R. 1 C. 703. In the decision in Appeal against Order 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) 21 M.L.J. 205 only decided that where a decree holder had agreed to give up portion of the decree amount, he 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 Lakshminarasima 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 appellants to claim that the monies deposited by the non-applying judgment debtors should be regarded as theirs. We must therefore hold that the application of the respondents is not in accordance with Order 21, Rule 89 of the Civil Procedure Code 1908. 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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