Laltu Singh vs Basudeo

D.C. Srivastava, J.—This is judgment debtor''s Second Appeal against the order dated 9.12.77 of First Appellate Court confirming the sale held on 18.10.75.

The brief facts are that a suit for recovery of money on the basis of pronote was filed by the Respondent against the Appellant which was decreed on 12.12.73. It was said to be an ex parte decree. No appeal was preferred nor any application for setting aside the ex parte decree. No appeal was preferred nor any application for setting aside the ex parte decree was made. In execution of the decree, the property of the Appellant judgment-debtor was sold on 18.10.75. The Plaintiff decree-holder was the auction purchaser. The Defendant judgment-debtor applied on 14.11.75 for setting aside the sale under Order XXI, Rule 89, CPC and tendered the decretal amount plus 5% of the same including the amount mentioned in the sale proclamation. Subsequently, it transpired that this deposit which was made on 14.11.75, that is, well within limitation of 30 days was found short of 5% of purchase money for being paid to the auction purchaser. An application was moved for depositing the deficiency and the same was allowed by the executing Court on 13.12.75. Time upto 20. 12.75 was granted by the executing court for depositing the deficient amount. Deficiency was made good by depositing the amount within the extended time.

The executing Court under its order dated 22.12.75 allowed the application of the judgment-debtor Appellant and set aside the sale. An appeal was preferred against this order which was allowed and the sale was confirmed. It is against this order that this second appeal has been preferred.

The learned Counsel for the Appellant has argued two substantial questions of law.

The first is that the first appeal against the order dated 22.12.75 of the executing Court is not maintainable and was therefore, incompetent. Attention was drawn to Order XLIII, Rule 1, CPC In my view, the contention cannot be accepted. Order XLIII, Rule 1 (j). CPC provides for an appeal against an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale. Order XXI, Rule 89 simply provides that where immovable property has been sold in execution of a decree (any" person claiming an interest in the property sold at the time of the sale or at the time of making the application or acting for or in the interest of such person) may apply to have the sale set aside on his depositing in Court:

(a) for payment of the purchaser, a sum equal to five percent of the purchase-money; and

(b) 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 such proclamation of sale, has been received by the decree-holder. This Rule 89 does not provide for automatic setting aside of sale. Sub-rule (2) of Rule 92 of Order XXI. CPC reads as under;

Where such application is made and allowed, and where in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of sale or in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such tithe as may be fixed by the Court, the Court shall make an order setting aside the sale:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

It is, therefore, manifest that the Court can set aside the sale oft an application under Order XXI, Rule 89, CPC acting under Rule 92, Sub-rule (2) of Order XXI, CPC and this order is certainly appealable within the meaning of Order XLIII, Rule 1 (j) of the Code of Civil Procedure

The next question urged has been that the lower appellate court went beyond its jurisdiction in impliedly setting aside the order of the executing court dated 13.12.75. Certainly this order is not appealable within the meaning of Order XLIII, Rule 1, CPC Once the time was extended by the executing Court vide its order dated 13.12.75, it could not be set aside in appeal inasmuch as no appeal against such order is contemplated under Order XLIII, Rule 1, CPC To this extent, the Order of the Lower Appellate Court is erroneous.

The next contention has been that even by implication, the order dated 13.12.75 could not be set aside. It was further contended that the judgment-together with 5% of the decretal amount and there was mistake inasmuch as, instead of 5% of the decretal amount and there was mistake inasmuch as, instead of 5% purchase money, 5% decretal amount was deposited. The executing court, in its two orders, clearly found that there was mistake of the office of the executing court inasmuch as no report was given on the tender or on the application through which tender was deposited that the deposit was short of the requirement of Order XXI, Rule 89, CPC Accordingly, the time for making deficient amount good was extended. On similar facts, in Ramananda v. Md. Abu Hassain (Goswami) AIR 1972 Gau 6, it was held that no act of Court should harm litigant and if the person is harmed by a mistake of Court, he should be restored to the position he would have occupied but for that mistake, is a settled principle: The facts in this case were that the property of judgment-debtor was auctioned. He applied under Order XXI, Rule 89, CPC for setting aside sale on deposit of decretal amount and further applied requesting the Court to know the exact amount to be deposited. Even the Court checked and calculated the amount and on the basis of the information given by the office, the amount was deposited. Later on, it was found that the deposit was short of 5% of purchase price. It was on these facts held that the judgment debtor was protected from the wrong committed by the Court.

In the case before me also, the facts are somewhat similar. Since no objection was raised by the office while passing the tender, instead of 5% purchase money, 5% decretal amount was proposed to be deposited, which was short of exact requirements of Order XXI, Rule 89, CPC that the judgment-debtor was misled.

The power of the executing court to extend the time to make good the deficiency was challenged by the learned Counsel for the Respondent on the ground that principles of equity cannot prevail over the statute, namely, the Limitation Act and provisions of Order XXI, Rule 92, CPC which fix 30 days period for making complete deposit. In my view, answer to this argument is to be found in Order XXI, Rule 92(2), CPC which provides as per Amendment Act of 1976 that in case where the amount deposited under Rule 89 is found to be deficient owing to any clerical or arithmetical error on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make the order setting aside the sale. This provision, therefore, empowers the executing court to extend the period for depositing the deficient amount in cases where deficiency occurs due to clerical or arithmetical mistake on the part of the depositor.

Thus, in this case, there was mistake on the part of the execution clerk and further if it is accepted that the judgment-debtor was also at fault in not getting the exact amount calculated, such clerical or arithmetical error was a ground for extending the time within the meaning of Order XXI, Rule 92(2), Code of Civil Procedure

In view of the above discussion, the first appellate court was certainly in error in taking the view that the period for making the deficiency good could not be extended.

The judgment under appeal as such cannot be maintained. The appeal, therefore, succeeds.

The appeal is allowed. The order under appeal is set aside. The order of the executing court dated 22.12.1975 setting aside the auction sale is hereby restored. In the circumstances of the case, the parties shall bear their own costs of this second appeal.