BRIJLAL RUDRA DUTT Vs. MANOHARPRASAD

JUDGEMENT

(1.) 1. The facts relevant to the decision of the important questions of law involved in the present application for revision are these. In execution of his simple money decree against the applicant, non-applicant decree-holder 1, attached and brought to sale the judgment-debtor's village property on 15th November 1930. It was purchased for Rs. 6,550 by the deceased husband of non-applicant 2. The other two non-applicants being co-sharers in the property claimed pre-emption under Section 151(a), Land Revenue Act. On 12th December 1930 the applicant filed an application, purporting to be one under Section 47, Civil P.C., to have the sales set aside on the ground of fraud and irregularity in the conduct of the sales. Three days later, that is on 15th December 1930, he also put in an application, under Order 21, Rule 89, Civil P.C., praying for the setting aside of the sales. Along with this application the applicant tendered in Court the sum of Rs. 327-8-0, representing the five per cent of the purchase money, for payment to the auction purchaser as statutory compensation, and also filed a receipt passed by the decree holder in his favour acknowledging receipt in full of the decretal debt. The following is the official translation of this receipt: I am Manohar Prasad Misra, son of Rai Sahib Pandit Kraparam Misra, Malguzar, resident of Raigat State. I have got the village of Pandit Vrujlal Misra, resident of Kasdol, put to auction in execution (of decree) in C.S. No. 273 of 29, fixed for 25th December 1930. I have this day received Rs. 4,070 (four thousand and seventy) from Pandit Vrujlal Misra, in full satisfaction of the claim, and have executed the receipt. Nothing now remains due by Vrujlal Misra, in respect of the claim. This receipt is therefore executed, so that it may be useful 'when necessary. Dated 15th December 1930.

(2.) BY a separate written agreement of the same date (Ex. D-1) the judgment-debtor undertook to execute a mortgage of his property in favour of the decree-holder when called upon to do so. On a preliminary objection by the purchaser that both the applications could not be heard simultaneously the executing Court, on 22nd August 1931, held that the previous application was not one under Section 47 but fell tinder Order 21, Rule 90, Civil P.C., and directed the judgment-debtor to elect to withdraw one of the two applications. The applicant accordingly withdrew the previously filed application and pressed the latter one only. The purchaser and the persons claiming pre emption contested the application on the ground that the receipt of full discharge and the subsequent transaction between the judgment-debtor and the decree-holder were bogus and fraudulent. In the alternative they pleaded that these transactions, even if genuine, being merely adjustment of the claim subsequent to the sale, did not comply with the requirements of Order 21, Rule 89, Civil P.C. The executing Court while holding that the receipt was genuine and "for full consideration" held that the same was not a legal "deposit" within the meaning of the aforesaid rule and dismissed the application.

(3.) THE case was argued before me very ably and exhaustively on both sides. Mr. Kotval for the applicant contended that the principle underlying the aforesaid rule being an express indulgence to the judgment-debtor of recovering his property all that the legislature intended was to award compensation to the purchaser as a solatium for his disappointment for the loss of the bargain before setting aside the sale, if the judgment debt, to recover which, the property was sold, was legally satisfied in full within 30 days of the sale. On the other hand Mr. Bobde for the purchaser and Rai Bahadur Choudhry for the pre emptors vehemently argued that as the rule was enacted principally to safeguard the interest of the auction purchaser, unless an actual deposit was made in Court, in the currency of the country, of the sum, specified in the proclamation of the sale and the statutory compensation payable to the purchaser, the latter's right to get the sale confirmed under Order 21, Rule 92, Civil P.C., could not be defeated by any private adjustment between the decree-holder and the judgment-debtor. The learned counsel even went to the length of contending that a cash payment to the decree-holder outside the Court would not satisfy the requirements of the rule and alternatively that any amount received privately by the decree-holder must be received prior to the date of sale and not thereafter. Mr. Bobde put forward a further ingenious but prima facie untenable argument that since the adjustment in the present case was not certified under Order 21, Rule 2(1) or (2), Civil P,C., it could nob under Sub-rule (3) of the same rule, be recognized by the Court in dealing with judgment-debtor's application under Rule 89 of the same order.