Arumughathammal vs Seth Mangoomal Lunida Singh Firm and Another

Kuppuswami Ayyar, J.—The appellant was the purchaser of a certain property which was brought for sale in execution of a mortgage

decree. There were several lots and one of them, lot 9, was purchased by the petitioner. Respondent 2 purchased that lot in court auction for Rs.

480 on 15th March 1943. Within a month from the date of that sale, the petitioner who purchased the property, according to her, under the

impression that it was unencumbered, found that it was sold at the instance of a decree-holder who had obtained a decree on a mortgage executed

prior to her sale, and in order to save the property filed the petition out of which this appeal arises. She deposited five per cent. of the purchase

money for this lot as she was interested only in it, as also the price for which the property was sold in court auction. When notice was issued to the

decree-holder as well as the auction-purchaser, the decree-holder stated that he had no objection to the petition, but the auction-purchaser

opposed it on the ground that the money that ought to have been deposited as per the terms of Order 21, Rule 89, Civil P.C., had not been

deposited. Under that rule, it is the entire amount due under the decree that had to be deposited in addition to the five per cent. As the amount

deposited by the petitioner was not the entire amount due under the decree but only the amount realised by the sale of the one lot in which she is

interested, he pleaded that the petitioner was not entitled to the relief claimed. The learned Subordinate Judge of Madura dismissed the petition on

the ground that the entire amount required by O.21, Rule 89 to be deposited had not been deposited.

It is urged for the petitioners before me that under the terms of Order 21, Rule 89 the petitioner had no doubt to deposit, for payment to the

purchaser a sum equal to five per cent. of the purchase money and for payment to the decree-holder the amount specified in the proclamation of

sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of that proclamation of sale, have been

recovered by the decree-holder; but since the payment of the latter amount, that is, the amount specified in the proclamation of sale, was for the

benefit of the decree-holder and as in this case the decree-holder had no objection to the petition being ordered, it will not be open to the

purchaser to oppose the petition on the ground that the correct amount payable to the decree-holder had not been paid into Court. The question

for consideration therefore is whether it is not open to the purchaser to insist on the provisions of the rule being strictly complied with and to

oppose the grant of the remedy to the petitioner if it had not been so complied with. In this case it was only after the petition was filed and after

notice had gone to the decree-holder which was nearly three months after the sale that the decree-holder stated that he had no objection to the

petition, and to the sale being set aside. If the decree-holder received the amount due to him on a date later than 30 days after the sale, will it open

to the Court to set aside the sale merely because he has no objection? The moment a property is sold in auction, the auction-purchaser gets the

right to the properties subject to this, namely that the sale shall not be set aside by the Court except when the terms of Order 21, Rule 89 are

strictly .complied with and deposits of the sums of money required by the Code are made into Court. If the conditions laid down in that rule are not

complied with the auction-purchaser has an indefeasible right to the property. And those provisions have not been complied with in this case by the

petitioner.

It is next stated for the appellant that, if the auction-purchaser is not anxious to get the five per cent. of the purchase money, it will not be open

to the decree-holder to oppose a petition for setting aside the sale. I am not sure if this is correct in view of the conditions laid down in the rule. In

these circumstances I think the Subordinate Judge was justified in finding that, inasmuch as the petitioner has not fulfilled the conditions provided in

Order 21, Rule 89 he is not entitled to have the sale set aside. The appeal fails and is dismissed with costs of respondent 2.