Ado Das vs Bansi Das and Others

Wort, J.—This rule is directed against the order of the Judge directing the present petitioner to deposit the whole of the decretal amount with a view to setting aside a sale in execution of a mortgage decree. The matter seems to be perfectly clear from one point of view, namely that this is a matter which the learned Judge had a right to decide, and it is impossible to say that I have got to set the order aside merely because I may take a different view of the law with regard to the matter.

But although it is my duty to deal with the matter on that footing, I propose to say a word about the merits. The plaintiff purchased one of the properties and there seems to be no dispute that the properties were sold separately. Now, it is quite dear under Order 21, Rule 89, Civil P.C., that the person who seeks to set aside a sale must deposit not only the purchase money of the property sold, but also the amount of the decree unless the decree-holder may have received any sum.

I might have taken the view that at any rate notionally the decree-holder received a sum equal to the amount for which he (the decree-holder) purchased one of the properties. The present petitioner will therefore be entitled to credit for that amount, or to put it more accurately to deposit a sum less that amount. But I am precluded from coming to any such conclusion by reason of the decision in Rameshwar Singh Bahadur v. Mangal Prasad Sahu AIR (1930) Pat 318

The contention of the learned Advocate however is that the case is differentiated from the present by reason of the fact that that was a third party purchaser. That is an argument which cannot be supported. It might very well be said, that at any rate in the case of a third party purchaser the decree-holder has received or is entitled to receive the money, but if we are to take that somewhat meticulous view of the matter, if he cannot be said to have received the money in the case of a third party purchaser, how can he be said to have received the money when be himself is the purchaser because he gets nothing until the sale is confirmed. For both these reasons it seems to me that the rule must be discharged with costs; hearing fee one gold mohur.