MADDI KUTUMBARAO Vs. SOLASA RAMACHANDRA RAO
LAWS(APH)-1963-3-32
HIGH COURT OF ANDHRA PRADESH
Decided on March 04,1963

MADDI KUTUMBARAO Appellant
VERSUS
SOLASA RAMACHANDRA RAO Respondents

JUDGEMENT

Ekbote, J. - (1.) This appeal raises a question of no little importance and the facts can be very shortly stated. Respondent No. 1 was appointed Receiver in O. S. 60/57 pending before the Sub-Court, Viyayawada for the sole purpose of getting the sale held in E. P. 37/56 in O. S. 116/49 pending in Sub-Court, Vijayawada, set aside. Thammana Tatayya and Narayana Murthy Annapurna Satram was managed by the trustees, respondents 2 and 3. Respondent No. 4 obtained a decree for money against the said Annapurna Satram (choultry) and put the same in execution in E. P. 37/56. The properties of this choultry were sold in the Court auction on 1-7-1957. The appellant was the purchaser. He purchased the properties for Rs. 24,600.00. In the meanwhile O. S. 60/57 was instituted in the Sub-Court, Vijayawada for the removal of the trustees, respondents 2 and 3 owing to their mismanagement. One of the reliefs claimed in that suit is for getting the sale held as above set aside. The suit O. S. 60/57 was filed under Section 92 C. P. C. Another relief which was claimed in the said suit is to make a provision to the effect that the decree in the present suit should be paid under the scheme settled in that suit. The Receiver appointed in the said suit filed an application under Order 21, Rule 89, C. P. C. on 31-7-1957 to set aside the sale. He deposited a sum of Rs. 1,230.00 representing 5% of the purchase money for payment to the purchaser and Rs. 410-15-0 as the poundage and Rs. 123.00 as interest. It was alleged inter alia, in the said petition that in O. S. 60/57 necessary provision for the discharge of the decree debt due to respondent No. 4 from the choultry is sought to be included and the mother of the 4th respondent who is the guardian showed her willingness for an adequate provision for the discharge of the decree debt being made in the said suit and has agreed 1o postpone realising the decree debt in O. S. 116/49. It was therefore prayed by the Receiver that the Court may dispense with the deposit of the amount specified in the proclamation of the sale for payment to the decree-holder. as required tinder Clause (b) of Rule 89 of Order 21 C. P. C. and set aside the sale. This petition was resisted by the appellant herein on various grounds. The main ground was that the deposit of the amount mentioned in the proclamation being a condition precedent for setting aside the sale, and as no amount has been thus deposited, the petition is liable to be dismissed. It was also contended that the decree-holder being a minor as no permission under Order 32, Rule 7 C. P. C. was obtained, the agreement cannot be given effect to.
(2.) The Subordinate Judge, Gudivada, allowed the application and set aside the sale. He held that it is not necessary that the decree should be fully satisfied and what is necessary is that there should be an arrangement between the decree-holder and the judgment-debtors. Dissatisfied with this order, the purchaser has filed this C. M. A.
(3.) The principal contention of Mr. B.V. Subrahmanyam, the learned Advocate for the appellant, is that the arrangement entered into between the decree-holder and the judgment-debtor in Ex. A-3 does not amount to payment within the meaning of Order 21, Rule 89 C. P. C. and the Subordinate Judge, therefore, was in error in setting aside the sale. In order to appreciate this contention, it is necessary to know what arrangement actually has taken place between the decree-holder and the judgment-debtors. We have already stated that a scheme suit under Section 92 C. P. C. has been filed. In that suit, a request is made that some provision should be made in the proposed scheme for the payment of the decree amount and a Receiver in that suit was appointed to get the sale set aside. The decree-holder seems to have agreed to this course. Thereupon, Ex. A-3 was entered into between the decree-holder and the judgment-debtors. The relevant portion of Ex, A-3 is as follows: "The amount as per the decree in O. S. 116/49 of Sub-Court, Vijayawada, and subsequent interests and costs are amounts subsisting and due to the third respondent herein from the Tammana Tatayya and Narayanamurthy Annapurna Choultry of which the respondents 1 and 2 are the trustees. As the plaintiffs in O/S. 60/1957 have filed that suit for framing a scheme for the management of the Choultry etc., and have asked in that suit for a provision to be made for the amount due to the third respondent in this petition, under the decree in O. S. 116/49, this third respondent agrees to the same. Therefore, this 3rd respondent has no objection for allowing the petition that has been filed for setting aside the sale and for setting aside the sale held on 1-7-1.957 in this number (of suit), without the necessity of depositing the sale warrant amount." It is obvious from a plain reading of the document that the decree-holder has not been paid the decree-amount. The decree-holder neither has agreed to walve the decree amount nor certified that the decree either it adjusted or paid. What he has agreed to is that the request made in O. S. 60/57 for making a proper provision for the amount due to him under the decree should be allowed by the concerned Court. In other words, he has no objection if a provision is made in the scheme suit for the payment of his decree. Till then as a consequence he does not wish to continue the. execution of the decree and has no objection to set aside tha sale already held. What we have to consider is whether such an arrangement constitutes payment within the meaning of Order 21 Rule 89. The material portion of Rule 89 is In the following terms: "89(1} Where immoveable property has been sold in execution of a decree, the judgment-debtor or any person deriving title from the judgment-debtor, or any person holding an interest in the property may apply to have the sale set aside on his depositing in Court- (a) ..... (b) for payment to the decree-holder, the amount specified In the proclamation of sale as that far the recovery of which the sale was ordered, less any amount which may, since the date of the proclamation of sale, have been received by the decree-holder." It is manifestly clear from the said provision that the amount specified in the proclamation of sale has to be deposited in Court for payment to the decree-holder. Any amount which may, since the date of the proclamation of sale, have been received by the decree-holder can, of course, be deducted. The question which naturally arises is: Does the arrangement-mentioned above amount to a deposit made in the Court for payment to the decree-holder, or does the arrangement result in the amount being received by the decree-holder? It is conceded that the said arrangement does not amount to a deposit made in the Court for the purposes of payment to the decree-holder. What is, however, contended is that the arrangement constitutes a receipt by the decree-holder since the proclamation was made. The question, therefore, is : What is the construction to be placed upon "any amount which may have been received by the decree-holder"?;


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