Punjab National Bank vs Viswanathan Ginners Private Co. Ltd. and others

Thanikkachalam, J.—This revision is directed against the order passed in E. A. No. 104 of 1986 in E. P. No. 42 of 1985 in O. S. No. 14

of 1983 on the file of the Sub-Court, Srivilliputhur. The petitioner herein is a third party.

The plaintiff-bank filed O. S. No. 14 of 1983 to recover the amount due under the mortgage from the defendants. In the suit preliminary decree

was passed on August 31, 1983, and the final decree was passed on December 14, 1984. According to the final decree passed a sum of Rs.

6,02,932.95 is due under the decree to the plaintiff from the defendants. Interest was awarded at the rate of 19.5% on the principal amount from

the date of decree till the date realisation. The principal amount is stated to be Rs. 4,02,932.95. In the meanwhile, the judgment

debtors/defendants sold the hypothecated property to the petitioner herein. The petitioner herein deposited a sum of Rs. 4,02,932.95 and

requested the court to give credit of this amount towards principal amount of Rs. 4,02,932.95 which means the principal amount was deposited by

the petitioner in E. A. No. 104 of 1986. The bank filed a counter stating that the amount deposited by the petitioner should be given credit towards

the entire decree amount and it should not be given credit towards the principal. After hearing counsel appearing on both sides, the execution court

directed to enter satisfaction of Rs. 4,02,932.95 towards the principal amount. Against this order, the present revision has been preferred by the

decree-holder.

According to the decree-holder, the execution court was not correct in directing to give credit the sum of Rs. 4,02,932.95 towards principal

amount. It was contended that the order passed by the execution court is in contravention to the provisions contained in Order 21, rules 1 and

2(2A) of the Civil Procedure Code. Learned counsel further submitted that the petitioner herein is not a party to the decree and, therefore, he is

not entitled to file a petition u/s 47 of the Civil Procedure Code. It was, therefore, pleaded that the order passed by the execution court in E. A.

No. 104 of 1986 is unsustainable.

In order to support this contention, learned counsel for the petitioner relied upon a decision of the Supreme Court in Meghraj and Others Vs.

Mst. Bayabai and Others, .

On the other hand, learned counsel for the respondents herein submitted that after purchasing the property subject to the mortgage, they

deposited a sum of Rs. 4,02,932.95 and requested the court to give credit to this amount towards the principal amount due to the decree-holder.

According to learned counsel for the petitioner, as per the provision contained in Order 21, rule 1, the petitioner shall first specify that the amount

paid should be credited towards the principal amount. Accordingly, the petitioner requested the court to do so. Therefore, the lower court was

correct in directing that the amount deposited should be credited towards the principal amount. Learned counsel further submitted that as he

purchased the property even though not in a court auction sale, he is entitled to file a petition u/s 47 of the Civil Procedure Code. Thus, the

respondents supported the order passed by the lower court.

I have heard the rival submissions. The fact remains that the suit was decreed for a sum of Rs. 6,02,932.95 and the principal amount is Rs.

4,02,932.95 in the final decree, interest was granted at the rate of 19.5% on the principal amount from the date of decree till the date of realisation.

The petitioner in E. A. No. 104 of 1986 is not a party to the decree in O. S. No. 14 of 1983 and he is a subsequent purchaser of the property

hypothecated to the decree-holder. He purchased the property subject to the encumbrance. The petitioner deposited a sum of Rs. 4,02,932.95

and requested the court to give credit to this amount towards the principal amount first. This request was granted by the execution court. The

decree-holder filed a counter stating that the amount deposited by the petitioner in E. A. No. 104 of 1986 should not be given credit towards the

principal amount, but it should be given credit towards the entire decree amount. The relevant provisions to be seen in a matter like this is Order

21, rules 1 and 2(2A) of the Civil Procedure Code. Order 21, rule 1 prescribes the modes of paying money under decree. According to the

provisions contained in Order 21, rule 1(3)(c), the person who deposits the amount or remits the amount should say that the money is to be

adjusted, whether it is towards principal, interest or costs. There is an amendment to Order 21, whereby rule 2(2A) was inserted. According to

rule 2(2A), ""no payment or adjustment shall be recorded at the instance of the judgment-debtor unless - (a) the payment is made in the manner,

provided in rule 1; or (b) the payment or adjustment is proved by documentary evidence; or (c) the payment or adjustment is admitted by, or on

behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of rule 1, or before the court"". According to the facts arising in the

present case, the petitioner in E. A. No. 104 of 1986 deposited a sum of Rs. 4,02,932.95 and requested the court to adjust this amount towards

the principal amount. The decree-holder filed a counter stating that such adjustment should not be made. According to the decree-holder, the

amount deposited by the petitioner in E. A. No. 104 of 1986 should be adjusted towards the entire decree amount. Therefore, the decree-holder

is not agreeable for adjustment of the amount deposited by the petitioner in E. A. No. 104 of 1986 towards the principal amount. In such a case, it

is not possible to adjust the amount deposited by the third party to the decree at this stage towards the principal amount. In the case of Meghraj

and Others Vs. Mst. Bayabai and Others, , while considering the provision of Order 21, rule 1 of the Civil Procedure Code, the Supreme Court

held as under (at page 163) :

But the normal rule is that in the case of debt due with interest any payment made by the debtor is in the first instance to be applied towards

satisfaction of interest and thereafter to the principal. It was for the mortgagors to plead and prove an agreement - that the amounts which were

deposited in court by the mortgagors were accepted by the mortgagees subject to a condition imposed by the mortgagors. In the present case

there is no evidence which supports the contention raised by counsel for the appellant.

Counsel urged that, in any event, when an account was finally submitted by the mortgagees they were aware of the fact that certain amounts were

paid in court and they knew that those amounts were paid conditionally and when the mortgagees withdrew the amounts deposited in court they

must be deemed to have accepted the conditions subject to which the amounts were deposited. But the account submitted by the mortgagees

shows clearly that they had given credit for the amounts deposited towards the interest and costs in the first instance and the balance only towards

the principal. The account submitted by the mortgagees clearly negatives the plea of the mortgagors.

Therefore, in view of the provisions contained in Order 21, rule 2(2A) and the decision of the Supreme Court cited supra, without the

concurrence of the decree-holder, it is not possible to adjust the amount deposited by the petitioner in E. A. No. 104 of 1986 towards the

principal amount. Therefore, the order passed by the execution court in E. A. No. 104 of 1986 is not sustainable. Therefore, the said order is

liable to be set aside. Accordingly, I do so.

In the result, the revision is allowed. No costs. In view of the above said conclusion arrived at by this court, on the merits, no finding was

rendered on the question whether the petitioner in E. A. No. 104 of 1986 can file the said petition u/s 47 of the Civil Procedure Code.