PER K. RAMASWAMY, J.: - (1.) The appellant judgment -debtor, was a tenant of Smt. Shanti Devi, who applied on September 28, 1974 for eviction of him for committing default in paying the rent. On September 30, 1974, she sold it to the first respondent who got impleaded himself in the pending proceedings and also independently sought for eviction. Pending the proceedings the appellant deposited rent in the name of Shanti. Devi which now is ultimately found to be Rs. 13,440. The decree for eviction made against him was ultimately confirmed by this Court. The suit of the first respondent for the arrears of rent was decreed for a sum of Rs. 6,419.98. Pending eviction proceedings, in the Writ Petition No. 830 of 1978 of the appellant, the High Court of Delhi directed on September 6, 1979, after hearing both the parties, and without prejudice to the contentions of the respondent, that the amount deposited by him may be credited to the account of the respondent. The first respondent filed E.P. No. 1974 of 1978 in the court of the Addl. Sub -Judge, Ist Class for sale of the appellant's plot of land bearing plot No. 31/35, Punjabi Bagh, New Delhi, a commercial area of an extent of 550 square yards to recover Rs. 7780.33 which includes costs. On November 4, 1978 warrant of its attachment was issued under Order 21, Rule 54 in Form 24 of Appendix 'E' of the Schedule to CPC. On becoming aware of that the appellant filed an objection petition contending that since he had already deposited in the Rent Control case Rs. 13,440 more than the decretal amount, in the Rent Control Court, the decree stands satisfied and became in executable. He also pleaded that Execution Court is devoid of jurisdiction as its pecuniary jurisdiction is limited to Rs. 25,000. Arguments were heard thereon. Ultimately on April 20, 1979 the Court passed the order thus: "Order dictated on this date. The decree -holder has moved an application under Order 21, Rule 66, CPC for warrant of proclamation of sale by public auction of the property of JD -I Accordingly allow the application of the decree -holder for sale of the property of the J.D. as per the following programmes: Court door 3 May 1979 Spot 17, May 1979 Auction 6 July 1979 Report 13 July 1979." (Original records were called for and this was the only order found from the record.)
(2.) Admittedly the appellant was neither given notice nor was he present, nor aware of passing of that order. On May 2, 1979 sale warrant under Order 21, Rule 66, CPC was issued. On July 6, 1979 auction was held in which Rajinder Singh and his wife Tavinder Kaur were joint highest bidders for a sum of Rs. 1,05,000. On becoming aware of the sale on August 10, 1979 the appellant immediately filed a petition under Order 21, Rule 90 CPC raising objection to the validity of the sale. On inspection of the record he later on filed an application, which was allowed on payment of costs, to impugn the sale under Sections 47 and 151, CPC. He pleaded that the sale was collusive and fraudulent. The value of the site was Rs. 3,50,000. It was sold for inadequate price. He was not served with any notice either under Order 21, Rule 54 or under Order 21, Rule 66. There is no sale proclamation. No notice was issued before settling the terms of the proclamation of sale. The sale proclamation neither specified the place or time at which the sale was to be conducted, nor was it published in the locality. He reiterated his plea of his prior deposit of more than the E.P. amount, and the Execution Court's lack of pecuniary jurisdiction and that absence of wide publicity led to fetching of less price. The so -called bidders were not genuine persons nor had the capacity to purchase the property. Only the second respondent and his brother were the participants and the bid was, therefore, a collusive one. The Execution Court held that due procedure was followed in bringing the property to sale. In view of Order 21, Rule 90(3) the objections raised to the validity of the sale cannot be gone into. The price fetched was an adequate one. The attachment order was served by affixing it on the site and there was no collusion. Accordingly the application was rejected and the sale confirmed. The Appellate Court, without going into all the contentions, considered the scope of Order 21, Rule 90(3) and held that by its operation pre -sale illegalities or irregularities do not vitiate the sale and dismissed the appeal. The High Court dismissed the revision in limine . Thus this appeal by special leave,
(3.) Mr. Gupta, the appellant, an Advocate argued in person. The first respondent, the decree -holder, is also an Advocate, but appeared through Mr. Gujral, learned Senior Counsel. The auction -purchaser was represented by Mr. K. Madhava Reddy, the learned Senior Counsel. The contention of Mr. Gupta that the Execution Court having been conferred with pecuniary jurisdiction up to Rs. 25,000, had no jurisdiction to execute the decree against the property whose value is Rs. 3,50,000, is devoid of substance Under Order 21, Rule 10 of CPC an application for execution should be made to the court "which passed the decree". Therefore, the value of the property sold at the execution is more than Rs. 25,000 does not take away the jurisdiction of the Trial Court. In Banwar Lal v. Prem Lata this Court held that the value of the property sold in execution is not relevant to determine the jurisdiction of the Execution Court. Admittedly the decree in execution for Rs. 7780.33 is within the jurisdiction of the Trial Court, which passed the decree. Equally the contention of Shri Madhava Reddy that the mode of payment of money decree envisaged under Order 21, Rule 1(1) must be by deposit of the decree amount into the court is equally devoid of force. Undoubtedly, literal reading of Order 21, Rule 1(1) provides that the mode of paying decretal money is either by depositing in the Executing Court or sending to the court by postal order or through bank draft or out of court to the decree -holder by postal order or bank draft or any other mode where the payment is evidence in writing or as the court which made the decree otherwise directs. The other sub -rules are not relevant for the purpose of this case. By amending the rule in 1976 a right has been given to the judgment -debtor to pay the decree debt either by depositing into the Executing Court or to send it by other modes of payment with intimation to the decree -holder in latter cases so that the liability to pay interest ceases from that date. It is an enabling provision for the benefit of judgment -debtor. Though by literal construction the appellant should deposit the decretal amount into the Executing Court for claiming the benefit of the discharge but anterior to it, in the Rent Controller proceedings, the decree -holder had knowledge of undoubted deposit of the amount made by the appellant. The liberty of "without prejudice" given to the respondent by the High Court in the writ petition was for the purpose of his defence, that the deposit in Shanti Devi's name was not payment to him, after knowledge of his purchase, for the purpose of default. But the parties being Advocates adopted legalistic stands. The substance is that even before execution was laid the amount was available towards satisfaction of the decree. The court should have directed its attachment and payment made or directed the appellant to withdraw that amount and deposit into the court, instead of launching the tardy process of execution by sale of immovable property. When the factum of deposit was disputed, this Court called for a report and the Addl. Dist. Judge, had in his report, stated that the appellant deposited about Rs. 13,000 and odd and it was lying in credit in the Rent Controller proceedings. The further contention that there were other liabilities which the appellant had not discharged, bears no foundation. Even otherwise there was no order of attachment of that amount by any court. The finding of the Appellate Court that the deposit was not to the credit of the suit is also not legal. In our considered view neither the stand of the first respondent nor the reasoning of the courts below are tenable. When the arrears of rent for which the decree was made was already in deposit to the knowledge of Anand in his eviction case and when the appellant objected to the execution, the Executing Court either should have directed the appellant to withdraw the money and credit the same to the suit account before its attachment was made or it should have passed an order under Order 21, Rule 23(2) which postulates thus: "Where such person offers any objection to the execution of the decree, the court shall consider such objection and make such order as it thinks fit." It is, therefore, the mandatory duty of the Executing Court to consider such objection and to make an order in that behalf. No such order has been made. It is true that in the contempt application filed by the appellant against the first respondent, an order was passed rejecting the appellant's contention that he had already deposited the decretal amount. Objection should independently be considered under Order 21, Rule 23. The order in the contempt petition is not a substitute to an order under Order 21, Rule 23(2), CPC. The objections, therefore, are still open to the appellant for being raised impugning the validity of the sale. The procedure is the handmade to justice. The substance of the matter, in the given circumstances is that the deposit made in the eviction case be considered to be one made under Order 21, Rule l(1)(a) into the suit out of which the execution arose.;