Decided on December 16,1969



- (1.)This Revision petition is filed by the judgment-debtor in a mortgage suit. Pursuant to the final decree the by potheca was sold and the respondent became the auction-purchaser; The latter paid into Court one-fourth of the bid amount on the date of sale The balance of the amount was deposited by the respondent on 11-12-1967. Oa the same day the judgment-debtor deposited into Court the amount necessary for the satisfaction of the decree. Having deposited the amount sufficient for the satisfaction of the decree the petitioner asked for the setting aside of the sale under Order 34 rule 5 (2) C. P, C. The lower court dismissed the application This revision petition is directed against that order,
(2.)When the matter came before me, in the first instance, the question that was argued was whether the deposit made by the judgment-debtor was prior to the payment into court of the entire purchase money by the auction-purchaser. Sub-Rule (2) of Rule 5 of Order 34. C; P.C. enacts that where mortgaged property or a part thereof had been sold, the court shall not pass an order under sub- rule (1) unless the defendant in addition to the amount mentioned in sub-rule (1) deposits in Court for payment to the purchaser a sum equal to 5 percent, of the amount of the purchase money paid into Court by the purchaser
(3.)The question that was argued in the first instance was whether the requisite condition under sub-rule (2) was satisfied) It was on behalf of the auction-purchaser that he paid into court the entire purchase money and that the amount deposited by the judgment-debtor was less than 5% of the amount of the purchase money and therefore there was no compliance with the requirement of sub-rule (2) so as to entitle the judgment-debtor to have the sale set aside. It is noticed on a perusal of the relevant provisions of sub-rule (2) that what is required of the judgment-debtor is a deposit of 5% of the amount of the purchase-money paid into Court by the purchaser. In other words, it would be sufficient compliance with the requirements of this Rule if the judgment-debtor deposits 5% of the amount not on the total purchase money but on such amount as has been paid into court by the purchaser by the date of the payment by the judgment-debtor o! 5% solatium into Court. It has been pressed before me that the rule has to be so in'erpreted as to make it obligatory on the judgment-debtor to make a deposit of solatium equivalent to 5% of the entire purchase money. I am unable to accede to this contention. The words "purchase-money paid into Court by the purchaser" must be given due weight and cannot be ignored, They clearly indicate that the solatium to which the auction purchaser is entitled is only 5% of such amount as he had paid into court by th3 date of the payment of the solatium by the judgment-debtor. As there was some dispute in this case as to whether the payment of the entire purchase money by the auction purchaser was earlier in point of time, a report was called for from the lower Court,

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