T L JAGANNATHA IYER Vs. B H KRISHNA IYER

JUDGEMENT

(1.) THIS revision petition raises the question whether making reference to the existence of certain antecedent or collateral proceedings and the reservation of rights in regard to the same in a petition accompanying a deposit under O. 21, R. 89, C. P. C. Could be said to make the deposit otherwise than an unconditional one. The auction purchaser who resisted the application to set aside the sale is the petitioner. In E. P. No. 570 of 1956 on the file of the District Munsif of Madurai taluk, the decree holder applied in execution of a small cause decree, for attachment and sale of a certain immovable property belonging to the judgment debtor. Execution was resisted on the ground that the decree had been previously satisfied. An application, E. A. No. 1430 of 1956, was also filed to record satisfaction of the decree. The latter application dismissed for default of appearance and execution was directed on the former. An application was then filed to restore E. A. No. 1430 of 1956; that too had to be dismissed for nonappearance of the judgment-debtor. Yet another application, E. A. No. 1008 of 1957 was filed to restore the previous one. In the meanwhile the decree-holder proceeded with the execution, and, in the sale by the court on 27-9-1957, the petitioner purchased the property. Within the time limited by law, the judgment-debtor, depositing the amount specified in the sale proclamation together with 5 per cent of the purchase money as solatium to the auction purchaser, filed an application under O. 21, R. 89, C. P. C. For setting aside the sale. The lodgment schedule accompanying the deposit was unconditional; but in the petition, there was a statement to the following effect : "the property mentioned in the execution petition was sold in auction on 27-9-1957 for Rs. 1030, and the application is posted to 30-10-1957 for hearing. As the petitioner's minor son has a share in the property, the sale should not be confirmed, as per the order of the District Court, madurai. Notwithstanding that, having regard to the interest of the aforesaid minor and of the petitioner himself and with a view to protect the same and for the benefit of the minor, the amount mentioned in the lodgment schedule has been deposited with the minor's mother. This petition is filed without prejudice to the petition in E. A. Nos. 631 and 632 of 1957. " the application to set aside the sale was opposed by the auction purchaser who evidently wished to retain the benefit of his purchase. The learned District Munsif dismissed the application on the ground that the reservation of the rights of the judgment-debtor in regard to E. A. Nos. 631 and 632 of 1937 was inconsistent with the unconditional nature of the deposit required under O. 21, R. 89, C. P. C. This view, however, was not accepted by the learned District Judge on appeal, who, considering the statement as merely of an existing fact, namely, the pendency of E. A. Nos. 631 and 632 of 1937, held that the deposit was not conditional one. The sale was accordingly set aside. In so doing the learned district Judge followed the decisions of Viswanatha Sastri, J. In Ramayya Chetti v. Krishnayya Chetti, 1958-1 Andh WR 369 and distinguished that of Govinda menon, j. In Dr. Edward Mathuram v. Abdul Latiff Sahid, 1949-1 Mad Lj 447 : (AIR 1949 mad 764 ). We are however unable to appreciate how the former decision which, expressly dissenting from the latter, holds that reference to collateral proceedings and the reservation of rights in regard thereto in an application under O. 21, R. 89, would not make the deposit a conditional one, can be followed if the latter, namely, 1949-1 Mad LJ 447 : (AIR 1949 Mad 764), is taken as containing a correct statement of the law. It has therefore to be seen which of the two views is correct.

(2.) IN Edward Mathuram's case, 1949-1 Mad LJ 447 : (AIR 1949 Mad 764), the judgment-debtor, while making a deposit under O. 21, R. 89 stated by his affidavit that the deposit was made "without prejudice to his contentions in the appeal against the decree in the suit and to his right to recover the sum from the decreee-holder, in the event of his success therein". The learned Judge held that the deposit should be deemed to have been made under protest, and thus not being unconditional, could not be considered as a valid one to entitle the judgment-debtor to have the sale set aside.

(3.) THE question whether the reference to pending proceedings or the reservation of the rights of the judgment-debtor in regard to other collateral matters would make the deposit made one not in accord with the provisions of O. 21, R. 89, c. P. C. Has to be considered in two aspects, (1) on the terms of O. 21, R. 89 and (2) whether under the law a deposit under that rule would take away the right of the debtor to challenge such antecedent proceedings; for if under the law the deposit has not the effect of prejudicing the debtor's other rights a mere statement of that law or about the pendency of the proceedings, cannot make the deposit any the less a proper one. Rule 89 states :