Decided on October 13,1944

Mullapudi Hanumayya Appellant
Annadasu China Bapanayya and Ors. Respondents


Alfred Henry Lionel Leach, C.J. - (1.) ON the 7th April, 1943, immovable property was sold by the Subordinate Court of Tenali in execution of a money decree. Within time the judgment -debtors applied under Order 21, Rule 89 of the Civil Procedure Code for an order setting aside the sale and deposited the necessary amount. The application was opposed by the auction purchaser on the ground that the decretal amount ' had not been paid into Court by the judgment -debtors themselves, but by one V. Bapamma who was acting as their agent. The objection was rightly overruled by the Subordinate Judge and the sale was set aside. The auction purchaser has, however, preferred this appeal.
(2.) THE appellant relies on a decision of a single Judge of the Allahabad High Court who apparently was of the opinion that the money must be deposited either by the judgment -debtor himself or by an agent authorised by special or general power -of -attorney. We are not prepared to follow this decision, which was given in the case of Syed Ibne Hasan v. : AIR1931All449 . In our opinion it does not correctly state the law. There is, however, a decision of a Bench of this Court which does - -Thimmaraju Venkata Kutumba Rao v. Thimmaraju Venkatappa, (1923) 46 M.L.J. 119. In that case the deposit was made by the pleader's clerk, not by the pleader, and it was suggested that this vitiated the application. The Court rejected the contention and stated that the mere fact that the vakil sent the money by the hand of his clerk instead of taking it to the treasury himself would not invalidate the application. Rule 89 requires the deposit to be made by the judgment -debtor, but that does not mean that it requires the personal attendance of the judgment -debtor when paying the money. A judgment -debtor can pay in the money through an agent and we can see no necessity for a power of attorney. The judgment -debtor must, of course, direct the payment to be made. The lodgment schedule shows that the money was paid by V. Bapamma on behalf of the judgment -debtor and she obviously paid it as their agent: This was sufficient.
(3.) THE appeal is dismissed with costs.;

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