GOVIND ALIAS MANJANATH PHONDU NAIK Vs. KRISHNA MADHAV SHANBHAG BALERI

JUDGEMENT

(1.) The petitioner in this revision petition was the judgment-debtor in execution proceedings against whom certain properties were brought to sale and sold in lots at the instance of the decree-holder. The decree-holder purchased four items of properties and respondent 3 purchased three lots. The sale was held on June 10, 1957.

(2.) On July 10, 1957, the judgment-debtor made an application in- which he stated that the decree had been adjusted out of Court by the payment of a sum of Rs. 1225/- by the judgment-debtor to the decree-holder and by the agreement between the parties for the recovery of the balance of the decretal amount in due course after the remission of a part thereof. The five per cent solatium which had to be deposited for payment to the auction-purchaser was also deposited in Court. But the Courts below dismissed the judgment-debtor's application on the ground that since the entire amount of the decree had not been paid by the judgment-debtor to the decree-holder, which alone in their opinion, could constitute an adjustment, the application which was presented under Rule 89 of Order XXI of the Code of Civil Procedure, could not lie. The Courts below accordingly refused to set aside the sale.

(3.) In this revision petition, the judgment-debtor complains that the construction placed by the Courts below on the adjustment on which he relied is entirely mistaken. H seems to me that Mr. Vittal Rao is right in asking me to take that view although Mr. Datar presented an argument to the contrary and contended that so long as the entire decree was not wiped out and satisfied, the arrangement on which the judgment-debtor depended would not amount to an adjustment. This argument which found favour with the Courts below, entirely overlooks the distinction between the payment of the decretal amount to the decree-holder and an adjustment of the decree, both of which can be pleaded, under the provisions of Rule 2 of Order XXI of the Code of Civil Procedure. This case was one in which part OT the amount of the decree was paid by the judgment-debtor to the decree-holder and there was an arrangement reached between the parties for the recovery of the balance of the decretal amount. It is difficult to understand how anyone can suggest that this is not an adjustment. In my opinion, the Courts below were therefore in error in thinking that there was no adjustment of the decree such as would fall within the purview of Rule 2 of Order XXI of the Code of Civil Procedure.