Kalliyani Amma Gouri Amma vs K. Purushothaman Unni

Govinda Pillai, J.—Defendant 1 judgment-debtor is the revision-Petitioner in both the cases. In execution of the decree for money, two items of properties were sold in court auction, the first item for 1700 fanams and the second item (it-is item 3 in the proclamation schedule) for 1200 fanams on 20-11-1121. Stating that the auction amount was 2273 fanams 8 cash, the same together with five per cent commission thereon was deposited in Court on 25-11-1121 for setting aside the sale. On notice to the decree-holder and auction-purchaser, Defendant 8 in the case, objection was raised by the totter that the deposit was insufficient under Order 21, Rule 86, for it fell short of the correct amount by 31 1/4 fanams. Thereupon that amount also was deposited after thirty days of the sale and a petition to excuse the delay in making the deposit was filed. The execution Court dismissed the petition to excuse the delay. The two items of properties were separately sold for definite amounts so that the judgment-debtor at the time of the final argument in the execution Court stated that, if the delay could not be excused, the petition might be treated as one for setting aside the sale relating to item 1 alone.

Since the amount deposited was more than sufficient so far as the sale amount relating to item No. 1 and the five per cent commission thereon were concerned, the Court allowed this prayer and set aside the Court sale relating to the first item. The auction-purchaser filed A.S. No. 437 of 1122 against this order in the District Court of Alleppey. A.S. No. 381 of 1.122 was filed by the judgment-debtor in the same District Court against the order refusing to condone the delay in making the deposit. She had also filed C.M.A. No. 98 of 1122: in that Court against the order refusing to set aside the court sale regarding item 2. All these appeals were heard together by the Second Judge of Alleppey. He was of the view that the delay could not be excused, that the setting aside of the sale as regards item No. 1 was wrong and that the appeal relating to item No. 2 was groundless. He therefore dismissed A.S. No. 381 of 1122 and C.M.A. 98 of 1122. A.S. No. 437 of 1122 by the auction-purchaser was allowed.

The result is the court sale regarding items 1 and 2 stand confirmed. CRP No. 120 of 1124 is against the orders of the lower appellate Court in C.M.A. No. 93 of 1122 and A.S. No. 381 of 1122, whereas CRP No. 118 of 1124 is against the decision in A.S. No. 437 of 1122.

The amount mentioned in the proclamation schedule for the realisation of which the court sale was held, was 2267 fanams 1ch. 8 cash. Both the items were sold for 2900 fanams and so, if the debtor wanted to take advantage of the provisions in Order 21, Rule 86, CPC (Order 21 Rule 89 of the Indian Code), she should have deposited five per cent commission on fanams 1700 and on fanams 1200 together with the aforesaid sum of fanams 2267-1-8 which was the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. This amount was not deposited within thirty days of the sale. The application for the Chalan to make the deposit shows that what was deposited was fanams 2273-0-8 which is called "Vavasamou", that is the auction-amount and five per cent commission thereon coming to 113 3/4 fanams. The mode of calculation itself is wrong if the application was intended to affect both the items sold.

The argument of the learned Advocate for the Petitioner was that the amount deposited would be sufficient to meet the decree-holder''s demand for after 31-1-1116, the judgment-debtor was liable to pay only interest on the decree amount at four per cent whereas a higher rate of interest was calculated and shown in the proclamation schedule. According to him, the amount deposited was therefore sufficient. He relied on the decision in ''Mt. Uda Bai v. Ram Autar Singh'' AIR 1934 Lah 790 (A). It was held there that where the decretal amount is wrongly stated in the proclamation of sale by mistake as being less than the original decretal amount, the judgment-debtor cannot be allowed to take advantage of such a mistake and that therefore if he deposits the amount less than the decretal amount taking advantage of such a mistake, he does not comply with the provisions of Rule 89. This would show that the amount mentioned in the proclamation if wrong could be ignored and the amount made on a proper calculation as per the provisions in the decree could be deposited to avoid the sale.

This decision appears to be against the provisions of Order 21, Rule 86(b), for it definitely laid down that what was to be deposited for payment to the decree-holder was 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 such proclamation of sale, have been received by the decree-holder. This matter came up for consideration before a Division Bench of the Travancore High Court in ''Parameswaran Karthavu v. Narayanan Karthavu'' 28 Trav L.J. 953 (B). There the judgment-debtor took upon himself to correct an alleged mistake in calculating the amount due under the decree and even in depositing the correct amount, the amount deposited was less than that shown by the judgment-debtor. It was held that the duty of the judgment-debtor was to deposit in Court the amounts due as provided in Order 21, Rule 86, CPC and thus to get the sale set aside, and thereafter if there was any mistake in the calculation of the amount shown in the sale proclamation, he should have applied for restitution to the extent of that wrong amount, and convinced the Court that he was entitled to be restituted to that extent.

The consensus of opinion in all the High Courts in India was that if there was deficiency in deposit, the petition has to be dismissed, as the delay in making up the deficiency at a later stage could not be condoned provided the deposit of the deficiency was more than thirty days after the date of the sale Drawing the analogy of the provisions in Order 21, Rule 86, it had been laid down by a Division Bench of the Travancore High Court while dealing with a petition under the Debt Relief Act that where a statute requires a certain act to be performed in a certain manner so as to enable a party to secure the right conferred on him by the statute, it is incumbent on such party to conform to the provisions of the Act in every respect. The default therefore, cannot be condoned by the Court. See the decision in ''Kuruvilla v. Ouseph'' 19 Trav. L.T. 430 (C). The deposit should therefore, have been in accordance with the provisions in Order 21 Rule 86 (Travancore). It is the amount mentioned in the proclamation that had to be deposited and not any other amount even if the calculation was wrongly made in arriving at a figure shown in the proclamation.

In execution of a decree, the decree-holder proclaimed one of two items charged under the decree. The revision Petitioner in CRP No. 598 of 1124 of the Travancore High Court who was the mortgagee of the vendee of the said property from the judgment-debtor deposited the sale amount and the commission and put in a petition to set aside the sale under Order 21 Rule 86, Code of Civil Procedure. It was held there that the sale should be set aside as the person making the deposit had to pay only the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered and of the five per cent commission. This appears to be the correct interpretation of the rule.

The provision in Order 21, Rule 86 was mandatory and that was the view expressed in ''Ramankutty v. Joseph'' (1952) 7 Bom. L.R. 258 . The party who makes the deposit is given the concession and he could get the concession only if he obeys the directions contained in the rule. At the time of the deposit he was to accept the correctness of the amount mentioned in the proclamation. On the other hand he was to accept the validity of the sale which he wanted to avoid. The decision in Chairman, Purulia Municipality Vs. Bishun Sao, is directly in point regarding the above matter. It is unnecessary to pursue the matter any further and it has therefore to be held that in order to get the sale of items 1 and 2 vacated the party should have deposited 5 per cent commission of fanams 1700 plus fanams 1200 and also fanams 2267-1-8 mentioned in the proclamation of sale. Thus the prayer to have the sale relating to both the items cannot be set aside.

It was strenuously argued that if both the sales could not be set aside, at least the sale relating to item 1 could be cancelled as the amount deposited was more than sufficient for the purpose. It has to be mentioned that, unlike in other Courts, there is a proviso added to Order 21, Rule 86 Clause (1) of the Travancore Code. It is mentioned there that when several items of properties are sold separately, the sale of one or more of such items may be set aside on depositing in Court the amount of the purchase-money for the items the sale of which is sought to be set aside and a sum equal to five per cent of that amount, and the balance, if any, of the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered still remaining unrealised. Thus if the properties were sold in blocks then the sale relating to one block could be avoided on depositing the amount so far as that block was concerned along with five per cent commission thereon and any portion of the amount mentioned in the proclamation that remained unsatisfied by the sale.

Thus it was stated that on deposit of 1700 fanams and five per cent commission thereon, the sale regarding item No. 1 could be cancelled, for the sale amount for item No. 2 was more than sufficient to meet the demands for which the properties were ordered to be sold. The necessity of an application to set aside the sale is stressed by some Indian Courts whereas other Courts have taken the view that such an application was not necessary. A chalan by which the judgment-debtor deposited the money under Order 21 Rule 89 (Indian) and prayed that the execution might be closed was sufficient for purpose of setting aside the sale and a separate application was not essential, and the chalan which set out the purpose was sufficient compliance with this rule. This was the dictum laid down in ''Abdool Latif v. Jadub Chandra'' 25 Cal 216 (E). The decision in Mahboob Khan Vs. Shaikh Majid Husain and Another and several other decisions of the Nagpur, Lahore and Oudh Courts support this view. Recently this view was accepted by a decision of this Court also.

So a Chalan which showed the purpose of the deposit was sufficient to have the sale set aside under this rule. An application for a Chalan to make the deposit or an application with a memo of deposit and its receipt was held to be a proceeding within the meaning of Section 153, CPC (Indian). Being so, it was held in Pallipurayil Asan Kutti Vs. Mukkolakkal Koyyaman Kutti, that it can be amended by the inclusion of a prayer for the setting aside of a sale although the application for amendment was made beyond the period of limitation for an application to set aside the sale. As regards the necessity of an application to set aside a sale, the decisions of the Madras High Court are conflicting. Thus if the application could be amended, it is also possible for the judgment-debtor in this case to amend her present application to set aside the sale, for it does not specify whether the sale regarding item 1 or 2 or both is to be set aside. The judgment-debtor confined her relief to item 1 even in the execution Court. That is a prayer that could be allowed, taking her prayer to restrict the application to set aside the sale of item 1 alone. There does not appear that there is any objection in cancelling the sale regarding item 1.

The order of the lower appellate Court in A.S. No. 437 of 1122 is set aside and the court sale regarding item 1 is cancelled. The amount necessary for the purpose would be fanams 1785. This will be retained in Court and the balance together with the balance due after meeting the decree-holder''s claim from the sale proceeds of the second item would be refunded to the revision Petitioner. Her prayer to have the sale regarding item 2 set aside or to condone the delay in making the deposit could not be allowed. C.R.P. No. 118 of 1124 is therefore allowed and C.R.P. 120 of 1124 is dismissed. In the circumstances of this case, both sides will suffer their costs throughout.