KAYYALAKKATH ASSAINAR Vs. VALLIMADATHIL KUMARAN
LAWS(KER)-1974-5-7
HIGH COURT OF KERALA
Decided on May 29,1974

Kayyalakkath Assainar Appellant
VERSUS
Vallimadathil Kumaran Respondents

JUDGEMENT

V.P.GOPALAN NAMBIYAR,J. - (1.) WE are confronted in this Second Appeal with a judgment -debtor and a decree -holder,each strenuously fighting for his rights in law.In pursuance of the decree in O.S.No.61 of 1967,of the Munsiff -Magistrate's Court,Manantoddy,the properties of the judgment -debtor,were sold in auction on 1st September 1969.The decree -holder had obtained leave to bid and set off the amount of the decree against the purchase price that was payable at the auction.This had been allowed.It is said that after such set off,no amount was payable to the decree -holder towards the purchase price.But under order XXI,rule 85,the purchaser is liable to deposit the purchase -money together with the amount required for the general stamp papers for the:certificate under rule - 94,before the court closes on the 15th day from the date of sale of the property.Order XXI,rule 86 provides for the consequence,on default of the obligation enjoined by rule 85. Rule 86 reads as follows: œ86.Procedure in default of payment."In default of payment within the period mentioned in the last preceding rule,the deposit may if the court thinks fit,after defraying the expenses of the sale,be forfeited to the Government,and the property shall be re -sold,and the defaulting purchaser shall forfeit all claim to property or to 'any part of the sum for which it may subsequently be sold " ;. Then follows certain provisions,of which it is enough to notice Rules 89,90 and 92.Rule 69 gives a right to the judgment -debtor or any person having interest in the property to have the sale set aside on deposit of a sum equal to five per cent of the purchase money and the amount specified in the proclamation of sale,less certain legitimate deductions.Rule 90 permits the decree -holder or other persons interested to set aside the sale on the ground of material irregularity or fraud in publishing and conducting the sale,provided substantial loss is established as a result of such irregularity or fraud.Under the Limitation Act,1963,the period of limitation to set aside the sale in execution of a decree is thirty days from the date of sale.The proviso to section 5 of the Act would not apply to an application under any of the provisions of Order XXI of the Code,as expressly stated in section 5 of the Limitation Act.
(2.) KEEPING the above provision in view,we may now,notice the relevant facts.After the sale on 1st September 1969,the decree -holder deposited a sum of Rs.205 on 15th September 1969 for the value of the stamp papers,for which sale certificate had to be issued under Order XXI,rule 94.The amount was deposited to the credit of O.S.6 of 1967,instead of to the credit of O.S.61 of 1967.On 6th October 1969,the decree -holder filed a petition to correct the mistake and to treat the deposit as having been made to the credit of O.S.61 of 1967. The Munsiff - Magistrate's Court allowed the application,and permitted the decree -holder to withdraw,the amount deposited by him and credited in the wrong suit and to re -deposit the same to the credit of the correct one.On appeal the District Court set aside this order and held that the court had no jurisdiction to order a re -deposit,and that on default of the obligation enjoined by Order XXI,rule 85,the consequ­ence provided by Order XX,rule 86 must follow;and the sale had to be declared null and void.It also held that the court had no power to extend the time for deposit enjoined by Order XXI,rule 85,even if the failure to make the deposit was not intentional but,on account of the inadvertence of the auction -purchaser.Hence this second appeal by the decree -holder. Reliance was placed by the appellant on the proviso to Order XXI,rule 92 of the C.P.C.added by an amendment in 1966 with effect from 1st January 1966. Order XXI,rule 92(i)together with the proviso may conveniently be set out: œ92.Sale when to become absolute or be set aside."( 1)Where no application is made under rule 89,rule 90 or rule 91,or where such application is made and disallowed,the court shall make an order confirming the sale,and thereupon the sale shall become absolute: Provided that before confirming the sale the court shall satisfy itself that the amount paid under rule 85 for the purchase of general stamp paper for the certificate under rule 94 is sufficient for the pur­pose in accordance with the rate in force at the time of the confirma­tion and may,notwithstanding anything contained in rule 86,give the purchaser such time as it thinks fit for making good any deficiency " ;. It was argued for the appellant that the proviso to the above rule,is notwithstanding anything contained in rule 86,and therefore there was power in the court, under this proviso to give time to the purchaser for making the deposit required to be made under rule 85.There is no warrant for this contention.What the proviso to Rule 92(1)enacts is that the court must be satisfied that the amount paid under rule 85 for the purchase of general stamp papers for the certificate under rule 94,is sufficient for the purpose.As pointed out by counsel for the res­pondent,this envisages and contemplates first,a payment under rule 85 for the purchase of stamp papers;and secondly that the said payment is not sufficient for the purpose.Ex hypothesi,on its language,the rule cannot apply to the case where there is no payment at all towards the value of the stamp papers for the certificate.
(3.) BUT it was contended by the appellant that there was in fact a deposit within the time under Order XXI,rule 85,towards the value of the stamp papers,and it was defective on the only ground that the number of the suit had been wrongly shown.It was urged that this was only a clerical mistake,which,it was within the province of the court to correct or rectify;and if this be done,there will be a proper compliance with the provisions of Order XXI,rule 85 of the Code.We are in agreement with counsel for the respondent that there is difficulty in rectifying the mistake and treating the deposit as correct or proper,in view of the events and the time that have supervened. The deposit was on 15th September 1969,i.e .,on the 15th day after the date of sale.The application for correction was filed on 6th October 1969,namely beyond thirty days from the date of sale which was on 1st September 1969.By the time the application for correction was made,the judgment - debtor had lost his right to apply to set aside the sale under Order XXI,rule 89 or rule 90 of the Code.The result is that to allow the application made on 6th October 1969 and to treat the deposit wrongly made to the credit of O.S.6 of 1967 as one made to the credit of O.S.61 of 1967,would be to seriously prejudice the judgment -debtor who can no longer have his remedies against the sale provided by Order XXI,rule 90.On the other hand,as far as the decree -holder is concerned,he does not suffer any serious prejudice or injustice, as he has the independent remedy of bringing the properties to sale again.In these circumstances,we do not think that the order of the court below calls for any interference. We dismiss this second appeal;but in the circumstances, without costs.;


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