Karuppaswami vs Mrs. P.A. Ibrahim (deceased) and Others

Wadsworth, J.—The appellant obtained a preliminary decree on a mortgage in 1932, the final decree being dated 19th January, 1933. The

preliminary decree provided that the various items should be sold in a certain order, item I being sold last. The present contesting respondent the

fifth defendant, is a puisne mortgagee of this item ,I which was sold as lot 6. The sale was held on 24th April, 1936, and the property with which

we are now concerned was sold to a third party. The fifth defendant made a deposit of Rs. 2,160 and odd which was the amount due under the

decree after deducting the prices realised by lots I to 5 plus the five per cent, payable to the purchaser and in E.A. No. 663 of 1936 she prayed

the sale of lot No. 6 to be set aside. This application was dismissed on 19th November, 1936, on the ground that the deposit was insufficient and

the sale was confirmed.

Against this order an appeal was filed by the fifth defendant, and this appeal was allowed on 12th October 1937, the order providing for

remand of the application to the executing Court which was directed to set aside the sale of lot No. 6 if the sale of lots 1 to 5 was confirmed and

otherwise to hold a re-sale of lot No. 6 in order to comply with the direction in the decree that this lot be sold last. Against this order of remand

there was an appeal by the purchaser which was dismissed on 21st July, 1939. Meanwhile Madras Act IV of 1938 had come into force and the

fifth defendant filed an application u/s 19 of that Act praying the Court to amend the decree and record full satisfaction on the basis of the

payments already made. There was also an application by the decree-holder for leave to draw out the money deposited into Court. The fifth

defendant''s application under Act IV was rejected and the decree-holder''s application to draw out that deposit was allowed. Against these two

orders appeals were filed to the District Court which reversed both the decisions of the trial Court. The two second appeals are now preferred by

the decree-holders against the decision of the District Court.

It is contended that no appeal lay against the trial Court''s order rejecting the application for relief u/s 19 of Madras Act IV of 1938. The appeal

purports to have been filed under the rules framed under the Act the validity of which was subsequently challenged successfully. But the

amendment to Madras Act IV of 1938 passed by Act XV of 1943 gives a right of appeal against an order u/s 19 amending or refusing to amend a

decree, or entering or refusing to enter satisfaction in respect of a decree, and this amendment is u/s 5 of the Amending Act deemed to have come

into operation on the 27th October, 1939. An attempt has been made on the strength of a decision in Abdul Rasak Rowther Vs. Abdul Rahim

Rowther and Another, to contend that this retrospective right of appeal will not save the validity of the appeal to the District Court. It seems to me

that the decision quoted has been misunderstood. That was a case where the trial Court''s order was passed before the date to which the right of

appeal is made retrospective. In the present case the application to scale down the decree was dismissed on the 3rd February, 1940; that is to

say, on the date of the dismissal having regard to the retrospective operation of the amending Act, the order was an appealable order and the

appeal as decided by the District Judge must be deemed to have been within his jurisdiction having regard to the effect of the Amending Act,

It is further contended that the fifth defendant having made an unconditional deposit of the amount due in respect of this property towards the

decree, there can be no question of refunding the amount which she has deposited merely because the decree has been subsequently satisfied by

the operation of Section 19 of Act IV of 1938. Here again it seems that the appellant must fail. The deposit under Order 21, Rule 89 of the CPC

is no doubt unconditional, in the sense that the judgment-debtor has bargained to pay as much money as is due under the decree in return for the

cancellation of the sale and he cannot go back on his bargain. But the amount which he has to pay is always subject to modification before the final

order is passed by reason of any subsequent payment towards the decree or by reason of any error in calculation of the amount due or presumably

by reason of any deduction in the amount due under the decree by process of law. Under the proviso to Rule 89(1) of Order XXI of the CPC as

amended in Madras, it is specially provided that "" where the Immovable property sold is liable to discharge a portion of the decree debt the

payment under Clause (b) of the sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay."" Under

the present decree, the owner of the sixth lot was only liable to pay so much of the decree amount as remained after the sale of the first five items.

This amount was something less than the amount deposited at the time when the deposit was made. But by a subsequent judicial proceeding the

amount of the balance of the decree has been reduced to nothing. On no consideration can the decree-holder be held entitled to draw out the

Court deposit which is totally in excess of the amount due to him under the decree, nor is there any reason for refusing to refund this excess to the

depositor. In this view I agree with the decision of the lower Court on both the appeals and dismiss both the appeals -with costs. (One Advocate''s

fee in Appeal No. 53 of 1941).