KANNATHAL ACHI Vs. A.R.V.D. VADUERUNATHAN CHETTIAR
HIGH COURT OF MADRAS
A.R.V.D. Vaduerunathan Chettiar
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Kuppuswami Ayyar, J. -
(1.) THE question for consideration in this appeal is whether a petition is maintainable by an assignee decree -holder to realise the amount payable by a purchaser in execution of a decree who failed to deposit the initial 25 per cent, of the sale price as required by Order 21, Rule 84, Civil Procedure Code, and who has to make good the deficiency of price caused by the property being re -sold for a lesser amount. The appellant was the purchaser at the sale held on 3rd February, 1942, in execution of the decree in O.S. No. 10 of 1923 on the file of the Subordinate Judge of Sivaganga. She failed to deposit 25 per cent of the price with the result that the property was again sold the next day for Rs. 30,550, the sale to the appellant being for Rs. 32,000. The property was first brought to sale at the instance of the decree -holder, one Chidambaram Chetty. On 18th January, 1942, he had assigned the decree to one Annamalai Chetty who was not brought on record as the assignee decree -holder. After the sale Annamalai assigned the decree to the present respondent Vadugunathan Chetty on 23rd February, 1942, and it was he who filed a petition for collecting the amount from the appellant. Vadugunathan has been recognised as the assignee decree -holder by the Court which passed the decree.
(2.) ORDER 21, Sub -rule 71 of the Civil Procedure Code states that any deficiency of price which may happen on a re -sale by reason of purchaser's default and all expenses attending such re -sale shall be certified to the Court or to the Collector as the case may be and shall, at the instance of either the decree -holder or the judgment -debtor, be recoverable from the defaulting purchaser. The appellant's contention is that as the respondent was only an assignee decree -holder he could not file a petition under Order 21, Rule 71. The word " decree -holder " includes an assignee decree -holder and it is only in the exercise of his right to have the decree executed for realising the amount due under the decree that the decree -holder can file a petition under Order 21, Rule 71. If the decree is otherwise satisfied he will not be entitled to take out execution under Order 21, Rule 71 but the judgment -debtor can. The deficiency in the sale price is really an amount due to the judgment -debtor from out of which the assignee decree -holder seeks to recover the decree -amount. Viewed in this light, the petition under Order 21, Rule 71 which was only a petition in execution of the decree, could be filed either by the decree -holder or by the assignee decree -holder for recovery of the amount due to him under the decree. The fact that the assignment to Annamalai was prior to the sale does not affect the question. It is not a separate right which is claimed independently of his right, to execute under the decree; it is only in execution of the decree for the purpose of realising the decree amount that the sum payable to the judgment -debtor as the deficiency in the sale price is sought to be proceeded against. As a matter of fact, that such money is the property of the judgment -debtor is clear from the decision in Sree Mahant Prayag Doss v. Rajah of Kalahasti, I.L.R. (1925) Mad. 570. It was there held that other decree -holders also would be entitled to rateable distribution out of this amount, viz., the deficiency in the price, which could be had only on the basis that the amount belonged to the judgment -debtor. It is true that it was held in that case that other decree -holders who applied for rateable distribution of the amount in deposit could not file a petition under Order 21, Rule 71. That was because they were not holders of the decree in execution of which the property was brought to sale. The respondent here is an assignee of the very decree in execution of which this property was put up for sale and the purchaser failed to make the statutory deposit. In these circumstances the learned Judge was justified in finding that the application by the respondent was maintainable. The appeal is accordingly dismissed with costs.;
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