Pannalal Sen vs Lakshmisona Pyne

Sinha, J.—This is an application for setting aside the sale of premises No. 7, T�ltal� Lane, under the provisions of Order XXI, Rule 89 of the Code of Civil Procedure. The facts are shortly as follows: One Kumud Behari Pyne died intestate on December 33, 1944, leaving behind his widow Sm. Lakshmisona Pyne and three minor sons, as also three unmarried daughters. The letter of administration to the estate of the deceased was granted to Sm. Lakshmisona Pyne. On May 19, 1946, a decree was passed against Sm. Lakshmisona Pyne and the three minor sons, the mother acting as their guardian-ad-litem. The decree was for Rs. 6,500 with interest at 6 per cent. per annum, and costs. On February 11, 1947, an order was made for attachment of premises No. 7, T�ltal� Lane, belonging to the estate of Kumud Bihari Pyne. The attachment was levied on March 1, 1948. Thereafter, the property was put up for sale by the Sheriff and sold by public auction on March 14, 1951, and was purchased by one Krishnahari Ghosh of 18/1, Sahitya Parishad Street, Calcutta, for Rs. 17,500. It is said that the premises is valued at Rs. 62,000, but that is a matter with which I am not concerned in this application.

On April 12, 1951, this application was taken out on behalf of the Defendant, returnable by special leave on April 13, for (a) leave to deposit in Court for payment to the purchaser Rs. 875, being 5 per cent. of the purchase-money, and a sum of Rs. 8,027-8-0, being the decretal amount with interest at 6 per cent. up to April 19, 1951; (b) leave to deposit in Court Rs. 462-8-0, being the costs of execution; and (c) for an order that the sale of premises No. 7, Taltala Lane, be set aside. It appears that on April 12, 1951, the application was moved ex parte and leave was granted to deposit the money in terms of (a) and (b) followed by the words "Sheriff to act on counsel''s "endorsement". The application was also noted as made on that day. It appears that, pursuant to this order, the money was deposited with the Sheriff. The amount deposited includes the Accountant-General''s commission.

The auction-purchaser has now taken a point which is one of some difficulty. He takes the point that, under Order XXI, 89, the money has to be paid into Court and payment to the Sheriff is not payment into Court, so that the provisions of Order XXI, Rule 89, have not been complied with, and the sale cannot be set aside. Learned Counsel, appearing on behalf of the auction-purchaser, has argued as follows: He says that the Sheriff has got some specified duties. If a property is attached, he can accept money for release of the attachment, or bring the property to sale and accept the money realised by sale. But there is no provision in law for his accepting money paid under the provisions of Order XXI, Rule 89. Such moneys could only be paid to the Accountant-General or to the Registrar.

Reliance is placed On Co-operative Hindusthan Bank, Ltd. v. Tarinibala Dassee (1939) 43 C.W.N. 600. In that case, the Plaintiff Bank sued upon a mortgage and obtained a preliminary decree and a final decree, as also a personal decree for over three lakhs. In execution thereof, certain securities of the nominal value of Rs. 60,000 were attached in the hands of the Imperial Bank of India. The Imperial Bank of India claimed a lien and ultimately the matter was adjusted between the Plaintiff and the Imperial Bank of India and the Sheriff was directed to sell a G.P. Note of the face value of Rs. 25,000 for paying the amount due to the Imperial Bank. The Sheriff claimed poundage on the entire Rs. 60,000 which was the value of the securities attached and also the Accountant-General''s commission. It was held by McNair J. that poundage was to be calculated on Rs. 48,500 which was the amount on which the Plaintiff''s claim was settled, and no Accountant-General''s commission was payable. In this connection HcNair J. said as follows:

The other point refers to the Accountant-General''s commission and Accountant-General''s fees. This claim is under the 1st Schedule of Ch. XXXVI of the Rules and Orders of this Court, item 58, which entitles the Accountant-General to commission upon moneys paid into Court. In the present instance no money was paid into Court. The Sheriff did sell Government promissory notes to the nominal value of Rs. 25,000 under an execution decree, or rather in execution of an agreement which became a decree. There was no necessity for any payment into Court and no payment was actually made into Court. It is contended, however, that payment to the Sheriff is payment into Court. Learned Counsel for the Sheriff relies on a note at the end of p. 260 of the 3rd Ed. of the Rules and Orders of the Original Side of this Court. Unfortunately, the decision on which that statement is based is not available. In my opinion, no payment was made into Court and the Accountant-General''s commission and fees should not be allowed.

The facts of the case are quite different from the present one. The learned Judge was considering as to whether, upon the facts of that particular case, the Accountant-General''s commission was payable. He was not considering a case under Order XXI, Rule 89 of the CPC Code. The wordings used in Order XXI, Rule 89, are:

may apply to have the sale set aside on his depositing in Court.

The question is whether payment into the hands of the Sheriff can ever be a compliance with the Rule. Before I proceed to consider the position in law, I must refer to the well-known case of Kalyanee Debi v. Hari Mohan Ghosh ILR (1929) Cal. 477. It was held there by an Appeal Bench of this Court that Order XXI, Rule 89, though well adapted to mofussil practice, is not in terms applicable to the practice of the High Court in its Original Side. Rankin, C.J. stated that, according to the practice on the Original Side, no amount is specified in any proclamation of sale as that for the recovery of which the sale was ordered. The learned Judge stated as follows:

It appears to me that in a matter of this kind what this Court has to do is to apply those words as fairly as possible to the circumstances of the sale on the Original Side.

In contradistinction to what McNair J. held in the Co-operative Hindusthan Bank''s case (supra), let us see what he held in a case under Order XXI, Rule 89 of the Code:

In National Insurance Co., Ltd. v. Ezekiel Aaron David ILR [1937] 2 Cal. 606 no money was put into Court, but the judgment-debtor settled the claim-with the decree-holder who intimated to the Court that his claim was satisfied. Although it was strenuously argued that the provisions of Order XXI, Rule 89, must be strictly observed, McNair J. pointed out that the provisions of this Rule were not strictly applicable to sales on the Original Side of this Court and stated that the provisions of the Rule were "substantially complied with", and set aside the sale.

I must point out here that both the abovementioned cases were cases of mortgage decrees. But, although the present case is one for attachment in execution of a money decree, the proclamation of sale could not possibly mention the amount of costs which has not been taxed. Therefore, on principle there seems to be no distinction.

According to our rules, the Registrar, as such, cannot accept such a payment without a special order Rule 42, Ch. XXXIV), yet in Kalyanee Debi v. Hari Mohan Ghosh (supra), money was paid to the Registrar, as such, and not to the Accountant-General and, still it was held that the provisions of the Rule had been complied with. The ordinary method of making payments into Court is indicated in Ch. XXIV, Rule 13 of our Original Side Rules. Under that rule, a copy of the order countersigned by a Judge is to be carried to the Accountant-General, who then accepts the money. Under Ch. XXVII, Rule 20, a judgment-debtor is entitled to the release of his property on payment or tender to the decree-holder or to his attorney or to the Sheriff. The payment to the Sheriff is payment to the Court; see Manilal Umedram v. Nanibhai Maneklal ILR (1903) Bom. 264. Mr. Ormond, at p. 375 of his Rules, refers to Gopal Chunder Sadhukhan v. Sm. Chandan Moni Dassee (unreported). It is not disputed that such moneys are liable to rateable distribution, although in Section 73 the wordings are analogous, namely, "where assets are held by a court." Rule 24 of Ch. XVII runs as follows:

The Sheriff shall receive all monies tendered to him under any warrant of arrest or attachment, and upon receipt of such moneys, or on realisation of moneys by sale or otherwise from the property of the judgment-debtor, he shall forthwith certify to the Court the amount and date of such receipt or realisation, and shall pay the amount less his fees, poundage and charges, to the Financial Secretary to the Government of Bengal and the Secretary and Treasurer for the time being of the Imperial Bank of India ... with the privity of the Accountant-General, to be placed by them to the credit of the suit, subject to the further order of the Court.

There is no specific provision in our Rules indicating the mode of payment under Order XXI, Rule 89. As has already been pointed out before, in cases of attachment, payment to the Sheriff has been always considered as payment into Court. In fact, Mr. Ormond in his annotation to the Rules, at p. 376, mentions that since 1924 a practice arose in this Court in cases of urgency and where there were no other attaching creditors, to pay out moneys directly from the hands of the Sheriff after deducting not only his poundage, but the commission of the Accountant-General. The learned annotator further proceeds to say that moneys held by the Sheriff were treated as assets held by Court u/s 73. An attachment comes to an end upon confirmation of the sale and in this case there has not been any confirmation of sale yet. As will appear from the wordings of 24 of Ch. XVII of our Rules, the wordings are:

(sic) realisation of moneys by sale or otherwise from the property of the judgment-

(sic)e money that is being paid under Order XXI, Rule 89, is a direct result of the attachment which has resulted in a sale. But before that sale has been made absolute, the judgment-debtor has come forward with the money and the solatium. Therefore, it can be said that the moneys have been "otherwise" realised from the property of the judgment-debtor, because it is paid as a price for applying to set aside the sale of it. Therefore, I do not think that it will be entirely outside the jurisdiction of the Sheriff to accept such moneys. If the money had to be paid to the Accountant-General, an order would have to be drawn up, signed by the Judge and taken over. In cases of urgency, where a question of limitation is involved as in this case, such a step would be impossible. The rule says "deposit into Court". A mere order for deposit is not enough. Therefore, in cases of urgency I do not see why the Court cannot direct money to be paid to the Sheriff. Under the rules, it would then be the duty of the Sheriff to pay it to the credit of the suit (Ch. XVII, Rule 24). It is argued that money should have been paid to the Registrar. As I have pointed out above, the Registrar is in the same position, namely, that he cannot accept any such deposit without a special order of Court. I, therefore, do not find it to be fatal that the money under an order of Court was deposited with the Sheriff, together with the Accountant-General''s commission.

I must point out that the order for payment was an order for payment into Court. But it is followed by the direction "Sheriff to act on counsel''s endorsement". At the time the application was made ex parte, none of these difficulties were of course pointed out and the order was made in terms of what learned Counsel asked for. Under normal circumstances, the more appropriate Order is to pay to the Accountant-General but I do not see why, if the matter is urgent and a payment to the Accountant-General is not feasible, the Court may not order the money to be deposited either with the Sheriff or with the Registrar. After all, the wordings of Order XXI, Rule 89, do not apply in terms. All that is required is that a fair order should be made, without prejudice to any party. A substantive compliance with the rule is quite enough.

On the materials before me, I cannot see how any party has been prejudiced by payment into the Sheriff''s hands. The Plaintiff has appeared and says that if the money be paid into the hands of the Sheriff, there will be rateable distribution. But, in whatever manner it is paid, the money will be subject to rateable distribution. If the money was paid to the credit of the suit and into the hands of the Accountant-General, these would all the more be assets held by the Court, and liable to rateable distribution. I, therefore, hold that the provisions of Order XXI, Rule 89, have been substantially complied with. The auction-purchaser says that he is entitled to interest on moneys deposited and costs of the bidding and costs of the application. I think he is entitled to the same.

I, therefore, set aside the sale of premises No. 7, T�ltal� Lane, and direct that, out of the moneys deposited, the sum of Rs. 875 be paid to the auction-purchaser as solatium and that the amount paid by the auction-purchaser, namely, Rs. 17,500 be refunded and that the Defendants do pay also to the auction-purchaser, interest thereon at the rate of 6 per cent. and also the costs occasioned by the purchaser bidding at the sale as also the costs of this application certified for counsel, all such amounts to be taxed, if necessary, by the Taxing Officer. The Plaintiff decree-holder will be entitled to withdraw the moneys deposited and will also be entitled to the costs of this application certified for counsel which he will add to his claim.