Inderdeo Tiwari vs Ram Ban Bijay Prasad Singh

Dhavle, J.—This is an application by the auction-purchaser in a rent execution sale against the order of the Munsif of the Second Court, Buxar, refusing to record a compromise according to which the sale was to be confirmed. To this compromise, the judgment-debtor and the decree-holder, besides the auction-purchaser, were parties. The sale was held on 8th December 1934, and the compromise was filed on 21st of that month and the prayer in effect was that the compromise be recorded and the sale confirmed. One Ramekbal Singh, who was not a party to the suit, came forward to oppose the'' application on the ground that he had some interest in the holding by virtue of a certain agreement with the judgment-debtor, but the lower Court held that he had no locus standi in the matter. The learned Munsif, however, proceeded to "reject the petition of compromise" mainly on the ground that Section 169, Ben. Ten. Act, which entitles the judgment-debtor to receive the balance of the sale proceeds only upon the expiration of two months from the confirmation of the sale (which itself depends upon the auction-purchaser depositing the balance), shows "an intention on the part of the legislature to accommodate such persons as could have, claims against the judgment-debtor"'' and that, therefore, an order confirming; the sale "would really operate to the prejudice of such persons." Section 169, however, makes a special provision in favour of the decree-holder in lieu of the general provision contained in Section 73, Civil P.C., which makes the proceeds of execution sales liable to rateable distribution among the decree-holder and other creditors of the judgment-debtor who may have obtained other decrees against him. On the face;. of it the period of two months prescribed, in that section is meant for the benefit of the landlord who has obtained the rent decree: the Act, as a whole, was intended to give simple remedies to the landlord rather than for dealing with the claims of other parties against the tenant. The Section came under consideration in Rameshwar Singh v. Mohammad Waiz 1917 Pat 433, where their Lordships said:

There is nothing in the Code (the Bengal Tenancy Act?) to suggest that the application is, not maintainable if made after two months. All that the Code indicates is that the legislature is of opinion that two months is a sufficient time to give the landlord a reasonable opportunity of exercising his rights; and if he fails to exercise them within that time he runs the risk of losing his money by being anticipated by the judgment-debtor.

The next ground on which the learned Munsif refused the application was that "there was nothing in the compromise petition in so far as the payment of the poundage fee is concerned." But the poundage fee is only to be realised under the H.C., G.E. and C.O. Civil, Vol. 1, pp. 123 and 124 when an application is made to the Court for the withdrawal of; the money in deposit; the auction-purchaser has already deposited twenty-five per cent. of the price for which the property was knocked down to him, and, as under the compromise this is to go to the decree-holder, there cannot be any question that the poundage fee will be paid when the decree-holder applies for with drawal of the money. The third ground on which the learned Munsif refused the application was that thirty days, the period of limitation during which the judgment-debtor could come to Court and apply to have the sale set aside under Order 21, Rule 90, Civil P.C., had not expired, and confirmation on the date of the application would be to the prejudice of persons who may choose thereafter to apply under that provision of the law. This, however, was plainly no reason for rejecting or refusing to record the petition of compromise, though it would have been a good reason for refusing to confirm the sale before the expiry of thirty days. That period is now long past, and there can now be no objection to confirming the sale.

The real point of the compromise was that the sale should be confirmed without the auction-purchaser having to deposit in Court the balance of the purchase money. The only persons who were interested in this balance of the purchase money, so far as the rent execution was concerned, would be the judgment-debtor and the decree-holder, and they were parties to the compromise set up by the auction-purchaser. A some what similar point was dealt with in Hemanta Kumari Debi v. Rajendra Kishore Nath 1926 Cal 1236, where a sale was set aside ''though the judgment debtor, instead of actually depositing the money in Court u/s 174, Ben. Ten. Act, for the satisfaction of the decree, arrived at an arrangement with the decree-holder by which he was satisfied, and deposited in Court only five per cent. purchase money which was due for payment to the auction-purchaser. Sir Sultan Ahmad has also brought to my notice the decision in Shivaram Sand v. Manu Lal Khemka 1928 Pat 40, a case in which James, J., declined to hold that:

Where, after a sale has taken place, the purchasers and the decree-holders, being the same persons, certify that the decree has been settled out of Court and pray that the sale may be set aside, the Court must nevertheless confirm the sale unless the owner of the property goes through the form of filing an application under Order 21, Rule 89 and depositing the money due under the decree in Court.

The concurrent wish of the parties and the obvious requirement of the case--to borrow the expression used in Ram Prasad v. Ram Charan Singh 1916 Cal 64,--not only gave jurisdiction to the lower Court to record the petition of compromise, but required it to do so, though the prayer for confirmation of the sale could not be allowed on that day but would have had to wait for a few days. Mr. B.P. Sinha endeavoured to intervene in this revisional application on behalf of the third party Ramekbal Singh. Ramekbal is admittedly not a registered tenant; he may or may not have good claims against the judgment-debtor, but the present execution matter is between the judgment-debtor on the one hand and the decree-holder and the auction-purchaser on the other. It was contended on Ramekbal''s behalf that if the balance of the purchase money is allowed to go to the judgment-debtor without being deposited in Court, he, Ramekbal, would lose a possible chance of getting his money. That may be; but the present proceedings are intended to adjust the relations of the landlord and the tenant and also by reason of the execution sale, the auction-purchaser, and cannot be extended to whatever relations may exist between third parties and the judgment-debtor. Mr. Sinha suggested that he could be heard as amicus curiae, but plainly he could not claim to come in on that footing. He also referred to the interest that the public may be presumed to have in seeing that the Courts follow the procedure prescribed for them. But the procedure applicable on the present occasion is clearly intended for adjusting the relations of the decree-holder, the judgment-debtor and the auction-purchaser, and it is impossible to recognize the claim of a member of the public having a not undisclosed private interest in a matter that is confined to the three parties I have mentioned. The judgment-debtor, opposite party No. 2, before me, supported the application of the auction-purchaser before me. The landlord decree-holder, opposite party No. 1, was indifferent but urged that there should be no costs against him. It seems to me clear that the lower Court had no jurisdiction to reject or refuse to record the compromise or, at any rate, acted with material irregularity in the exercise of its jurisdiction in doing so. That order must be set aside, the compromise recorded and (now that the period of thirty days has expired) the sale confirmed; the balance of the purchase money need not be deposited by the auction-purchaser. There will be no order regarding the costs of this application, but Mr. B.P. Sinha''s application is dismissed with costs (including a hearing fee of one gold mohur) payable to the auction-purchaser who is the petitioner before me.