Unnaithanakath Puthan Veettil Kummakutty alias Kunhutti and Another vs Munnodath alias Mangat Manakkal Karnavan and Manager, Neelakandan Nambudri

Venkatasubba Rao, J.—This appeal raises a question in regard to Order 21, Rule 89, Schedule I, Civil Procedure Code. If a person other

than a judgment-debtor pays money into Court under that section, can he insist that the decree-holder shall not draw the sum out without furnishing

security?

The facts of the case take us so far back as 1905. One Sri Devi of Mudathode Illam conveyed in jenm to Thuppan Nambudri, the brother of

the plaintiff, her entire property (consisting of 140 items). The sale-deed (Ex. I) is dated 16th October, 1905 and mentions the consideration as Rs.

16,000. The purchaser by that deed is directed to pay certain specified debts of the vendor and it then provides that he shall also be bound to pay

up all other lawful debts due by her. Eramutti, the brother of the 1st defendant, filed against Sri Devi, O.S. No. 561 of 1905, claiming a certain

amount as due. It was to Thuppan''s interteist, having regard to Ex. I, to get the suit'' dis missed. He accordingly fought the case on behalf of Sri

Devi and, lost it in spite of his vigorous defence. As the District Munsif points out, the case was fought out up to the High Court and it was decided

that the debt claimed by Eramutti was due. Thup pan then became, under the terms of Ex. I, instantly liable to discharge this decree debt. He,

however, committed default and the decree remained unsatisfied. Sri Devi, as I have said, by the sale-deed completely deprived herself of all

property. Eramutti, in the circumstances, followed the only course open to him, that of attaching some items bought by Thuppan. The latter

thereupon preferred a claim under Order 21, Rule 58. The Court rejected it, observing that, the debt not having been discharged, the property

conveyed under Ex. I remained liable. Even then, Thuppan did not honestly pay up the debt. He filed a regular suit (O.S. No. 414 of 1911)

contesting the order rejecting the claim.

In the meantime the attached property was brought to sale. Thuppan applied in his suit that the sale might be stopped. On 23rd October, 1911,

his application was dismissed. Every dilatory method was resorted to; he next applied that the sale might be adjourned. The petition he filed (Ex. 3)

contains the following significant statement:

The properties obtained by me from the defendant are proclaimed. The sale must be abjourned to enable me to produce the decree amount.

This application met with the same fate as the previous one. Thuppan then, determined to save his property, applied under Order 21, Rule 89,

for the setting aside of the sale. He made the deposit prescribed by that rule. But, before it could be drawn out by the persons entitled, he, applied

that security should be taken from the decree-holder. The Court, for some reason not disclosed, complied with this request and directed that

security should be furnished. Ex. A, dated 18th December, 1911, was thereupon executed by the heirs of Eramutti, including the 1st defendant. It

contains the clause that they would bring back the amount into Court, if Thuppan should succeed in the regular suit then pending.

The rest of the story may be briefly told. Thuppan won O.S. No. 414 of 1911, which dragged a weary length. The case went up as far as the

High Court. All the Courts, that dealt with the suit in its various stages, held that the sale was valid; but the point to note is that the sale was upheld

on the sole ground that Sri Devi acted honestly and got Thuppan to undertake by the deed to discharge her debts. There is one further fact which

is important. Sri Devi''s reversioners (Attaladakkam heirs) filed a suit questioning the alienation evidenced by Ex. I. Thuppan having died, his

brother, Nilakandan, the present plaintiff, filed a written statement (Ex. 4). Sleeking to justify the sale, he asserts that the terms of the sale-deed

were carried out and that the amount due to Kunhutti was fully paid up. This statement (made in March 1921) implies that the deposit made by

Thuppan under Order 21, Rule 89, had the effect of discharging the decree debt. Whether this result follows in law or not, it shows that the plaintiff

was conscious that he was under a moral duty to pay up the debt. It now suits him to suggest that he made a false allegation in the written

statement, to defeat the claim of the reversioners. In any event, that allegation is inconsistent with the present claim based on the security bond.

That claim is shortly this. Under the bond, if Thuppan''s suit was decreed, the executants bound themselves to bring back the money. Now,

Thuppan having succeeded, the plaintiff seeks to enforce the bond and claim the amount from the 1st defendant. It may be mentioned that this suit

was filed in 1923.

The first question that arises is, was it competent to the Court to have taken the bond in question? To answer this question, one must have

regard to the object and scope of Order 21, Rule 89. The Code in various sections lays down in what circumstances a judgment-debtor may

contest the sale of his property. Similarly, there are sections under which, a person claiming"" adversely to a judgment-debtor, may object to

attachment and sale. But Order 21, Rule 89, enacts a special provision. Its object is to put an end to every kind of contention and dispute. The

judgment-debtor is saved from the threatened deprivation of his property; the decree-holder''s claim is satisfied and the auction-purchaser is

compensated. The section would be frustrated if the person paying money under it is permitted to do so under protest. Clause 2 of Rule 89 enacts:

Where a person applies u/s 90 to set aside the sale of his Immovable property, he shall not, unless he withdraws his application, be entitled to

make or prosecute an application under this rule.

This shows that the two proceedings referred to in this clause are utterly incompatible. If the debtor wants to keep a dispute open, he cannot

claim the benefit of this section. In fact, this accords to him a special indulgence. While he is thus favoured, care is taken to provide that the

interests neither of the decree-holder nor the purchaser are sacrificed. It fol-. lows from this that, when the judgment-debtor pays the amount

specified, he pays it unconditionally. The payment followed by the order setting aside the sale has the effect of automatically extinguishing the

decree debt. If an application is made under Rule 89 and the deposit requirled by that rule is made within 30 days from the date of the sale, the

Court has no option but to make an order setting ityaside. (See Rule 92.) This assumes that the decree debt is discharged and the decree-holder''s

remedy is gone. The section, then, is inconsistent with the notion that payment can be made either under protest or coupled with conditions.

I have so far dealt with the question on the footing that the person making the deposit is a judgment-debtor; but, under the rule, any person

owning an. interest in the property by virtue of a title acquired before the sale can make the application. Supposing such a person happens to be

not a judgment-debtor but a third party, even then he is subject to the same restrictions. If the property is not liable to be attached for the ''debt, he

can ignore the attachment and sale. If, on the other hand, it is liable, or he believes it to be liable, he can avail himself of this provision and get rid of

the sale. But, in that case, he must be taken to have admitted the, validity of the sale and it is not open to him either to dispute the sale or to get

back the money. Take the case for instance, of a debtor who, before the decree, had conveyed his property to trustees for the benefit of his

creditors. , The trustees, if they choose, may dispute the attachment and the. Court-sale. But they may gain nothing by such a course, and, being

under a duty to pay up the: debt, may choose to take advantage of this provision. To hold that they would still be entitled to contest the sale, or, to

claim a refund of the money, would be wholly opposed to the ""principle underlying the section.

This view receives support from several decisions. In Narayan v. Amgauda ILR (1920) B. 1094. the property was sold in execution of a decree

obtained by the defendant against a third party, and purchased by the former. The plaintiff, claiming to be the owner of the property, protested

against the sale and ultimately got it set aside under Order 21, Rule 89, by paying the required amount into Court. The money having been paid

over to the defendant, the plaintiff sued for a refund of it, as having been involuntarily paid. It was held that the amount must be taken to have been

deposited voluntarily and unconditionally, and therefore no suit could lie for its recovery. Macleod, C.J., observes:

If, then, the plaintiff, to suit his own convenience, got rid of the sale of the judgment-debtor''s right, title and interest in the property by paying the

decretal amount into Court, it is quite clear that he could not recover the amount as having been involuntarily paid.

In Raghu Ram Pandey v. Deokali PandeI.L.R. (1927) Pat 30. a decree had been obtained by defendants 1 and 2 against defendant No. 3. In

execution of that decree, a certain property was brought to sale and the plaintiff objected, stating that it belonged to him and not to the debtor, but

liis objection was disallowed. He then deposited the decretal amount and five per cent, under Order 21, Rule 89 and got the sale set aside. The

money was withdrawn by defendants 1 and 2 and the plaintiff filed the suit in question for a declaration that the property belonged to him and for a

refund of the amount withdrawn. In spite of a finding that he was the owner of the property, his suit was dismissed on the ground that he was not

entitled to get the money back. I quote the following passage from the judgment:

Once a payment is made under Order 21, K. 89, it is clear that the person making the payment cannot be heard to say that the sale was not a valid

sale and that the money deposited should not be paid to the decree-holder. The judgment-debtor or the person interested is under no compulsion

to make the deposit under Order 21, Rule 89. Such a deposit is a voluntary deposit and the person making the deposit cannot in my opinion

maintain a suit for a refund of the money deposited by him.

The same view was taken in Kunja Behari Singha v. Bhupendra Kumar Dutt (1907) 12 C.W.N. 151..

The case relied upon for the plaintiff, (1913) L.R. 40 I.A. 56 (Privy Council) does not help him. The defendant Bank had obtained a decree

against the Delhi Cotton Mills Company and attached certain mills. The plaintiff, claiming to be the owner of the mills, paid the decree amount

under protest and, having freed his property from the attachment, brought an action claiming a return of the money so paid. The Judicial Cominitiee

held that the procedure provided in the Code in regard to claims to attached property is merely permissive and the fact that such a procedure is

open to him, if he chooses to adopt it, interferes in no way with his right to take any other lawful alternative. In that case, the money was paid

before the sale and the payment was not made under Order 21, Rule 89. The decision has clearly no application.

If this be the correct view, it follows that the Court had no right to take the security bond in question. It acted clearly in excess of its powers.

But it may be contended that though its action was illegal, there is a higher rule which is called into play, namely,

One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors . . .

See Rodger v. The Comptoir d''Escompte de Paris (1871) L.R. 3 P.C. 465.

But the facts to which I have referred take the case clean out of this principle, The claim of the plaintiff is utterly inequitable and unjust. The

District Munsif has carefully analysed the facts and stated them in detail. The Subordinate Judge, who has reversed his judgment, does not advert

to them, and, confining his attention merely to the security bond, thinks that there are equities in favour of the plaintiff. The truth is, as. I have

shown, not only is there no equity in the plaintiff''s claim, but all the equities appear to be the other way. The facts I have fully set forth and I do not

propose to repeat them. It would suffice to point out again that first in 1911 Thuppan stated when applying for an adjournment of the sale that he

would bring into Court the decree amount, and that in 1921, ten years later the plaintiff himself (Thuppan having in the meantime died) asserted in

the reversioner''s suit, that the decree debt had been fully paid up. These assertions show that Thuppan as well as the plaintiff were fully conscious

of their ob|igation under Ex. I. The present claim is not only unjust but inconsistent with their own declarations.

The suit is dismissed, but I direct the plaintiff to pay only the costs of this second appeal. Some blame attaches to the 1st defendant who

voluntarily executed the security bond and that is the reason why I do not propose to give him costs in the Courts below.