Hari Sundari Dasya vs Shashi Bala Dasya

The question raised in this case is whether, when property has been sold in execution of a decree and there are other decree-holders who, prior to the sale, have applied u/s 295, C.P.C., for rateable distribution, the person whose property has been sold must pay the whole amount of all the decrees in order to get the sale set aside u/s 310A, or only the amount of the decree for the satisfaction of which the sale was proclaimed and took place. It is said that Monmohini, one of the" decree-holders who applied for rateable distribution had obtained an order for sale and that a sale proclamation had actually issued. It is not known what the contents of this sale proclamation were, either as to the amount of the decree or the date on which the sale was to take place. It is said that some claim was preferred which led to the postponement of the sale, but this much is conceded that, on the date on which the sale now in question took place, Monmohini was not in a position to sell the same properly in execution of her decree, that is to say, that in her case, there was no proclamation for the sale of the property on the date on which the sale now in question took place. Monmohini is therefore in no better position than a decree-holder, who had merely applied for execution of his decree and for rateable distribution. We think it is impossible to construe section 310A in the way in which we are asked to construe it by the learned pleader who shows cause against this rule. All that the section requires a person whose property has been sold to do, is to pay a percentage on the purchase-money to the purchaser, and to pay to the decree-holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. It is said that the word ''decree-holder'' here must include all the decree-holders who have applied for rateable distribution, and certain cases have been cited to show that a similar construction has been put upon the same word in section 311. However that may be, reading the word ''decree-holder'' in connection with the context in section 310A, we think it can bear no such construction as that. The amount which the owner of the property has to deposit is the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, and the proclamation referred to is obviously the particular proclamation under which the sale took place. The effect of the section is, we think, to put the owner of the property practically in the same position in which he would have been if he had paid the amount due under the decree before the sale took place. Much stress has been laid upon the hardship which might possibly be caused by the operation of this section to other decree-holders, who, before the sale, had applied for rateable distribution but their position would be no worse than if the judgment-debtor had, before the sale, paid the money, in which case no sale would have taken place and no distribution. Here also we think, that by reason of the payment which the judgment-debtor was empowered to make u/s 310A, and did make, there were no assets for distribution. The view of the law which the Munsiff has taken is, in our opinion, incorrect. He finds however as a fact that the judgment-debtor, the owner of the property, paid in the amount which he was required to pay u/s 310A to satisfy the decree of the decree-holder and that deposit was made within time. Under these circumstances the sale must be set aside. The order of the Munsiff will therefore be set aside and in substitution for it, there will be an order for the setting aside of the sale. The petitioner will get 2 gold mohurs as costs.