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PETITIONER: HIMMATBHAI SON OF CHAGANLAL

       Vs.

RESPONDENT: RIKHILAL AND ORS.

DATE OF JUDGMENT28/02/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SARKARIA, RANJIT SINGH

CITATION:  1978 AIR  918            1978 SCR  (3) 429  1978 SCC  (2) 160

ACT: Civil Procedure Code, Order 21, Rules 89 and  90-Application by   one   judgment  debtor  under  Rule   90-Whether   bars maintenance oil application by other Judgment debtors  under Rule 89.

HEADNOTE: In  execution  of  a  money decree,  a  house  belonging  to respondents Nos.  1 to 16 and 18, was sold to the  appellant herein,  in  a  court  auction.   Judgment  debtor,  Babulal respondent  No.  18 herein, preferred an  application  under Order,  21,  Rule  90 C.P.C., for setting  aside  the  sale. Later,  on behalf of himself an two other judgment  debtors, he  filed another application under Rule 89,  and  deposited the decretal and compensation amounts.  The Trial Court, and in  appeal,  a single Judge of the High Court  rejected  the latter  application on the ground that it,; maintenance  was barred by the pending application under Rules 90.A  Division Bench  of the High Court, allowed a Letters  Patent  Appeal, but granted a certificate of fitness. Disposing of the entire matter, and allowing the application under Order 21 Rule 89. the Court HELD : The application of one judgment debtor under Order 21 Rule  90, does not in any manner stand in the way  of  other judgment debtors, making application under Order 21 Rule  89 C.P.C. [432 F-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2337 of 1968 (From the Judgment and Order dated the 2nd May, 1968 of  the Madhya Pradesh High Court in L.P.A. No. 7 of 1967). G. L. Sanghi and K. J. John for the appellant. S.  S. Khanduja and R. K. Shukla for respondents Nos. 1,  2, 4. 5, 8 to 14 & 16. Ex-parte : For Respondents Nos. 3, 6, 7, 15, 17 & 18. The Judgment of the Court was delivered by KAILASAM,  J.-This  appeal is by  the  auction-purchaser  on certificate  of fitness granted by the High Court of  Madhya Prades  against  its order setting aside  the  decisions  of Single  Judge  and  the District  Judge  and  directing  the

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District Judge to deal with the application under Order  21, Rule 89, Civil Procedure Code, filed by the Judgment-debtors Bhagwandas and Rameshwar Prasad on 7th February, 1966. The  decree-holder,  Smt.  Bittibai,  the.  17th  respondent herein, in execution of a money-decree in her favour against respondents 1 to 16 and 18 herein sold a house belonging  to the judgment debtors on 8th January, 1966.  It was purchased in  the  court  auction by the appellant  herein.   On  17th January  1966, respondent 18 Babulal, one of  the  Judgment- debtors made a 10--277SCI/78 430 application  in  the Court of District Judge,  Sagar,  under Order  21, Rule 90, Civil Procedure Code, for setting  aside the  sale.  On 7th February, 1966 an application  was  filed under Order 21, Rule 89, by Babulal, the 18th respondent, on behalf  of  himself  and  respondents 1, 4  and  7  and  the decretal  amount  of  Rs. 27,267/90p.  and  Rs.  2,300/-  as compensation,   totalling   in  all  Rs.   29,567/90p.   was deposited.   The appellant, auction-purchaser, resisted  the application  filed by the judgment-debtors, under Order  21, Rule  89, on the ground that as an application  under  Order 21, Rule. 90, was already pending the application under Rule 89 is not maintainable. The trial court by an order dated 9th August, 1966 held that since  the application of the judgment-debtors  under  Order 21,  Rule  90, was pending the application under  Order  21, Rule  89, was liable to be dismissed as not  competent.   It further  held  that the application filed  by  in  Judgment- debtor,  Babulal, dated 7th February, 1966 was not a  proper application  under Order 21, Rule 89.  The  judgment-debtors filed an appeal to the High Court of Madhya Pradesh and  the learned  Single  judge who heard the appeal  held  that  the application  dated 17th January, 1966 under Order  21,  Rule 90,  was a bar to the maintenance of the  application  dated 7th  February, 1966 under Order 21, Rule 89,  and  dismissed the  appeal of the judgment-debtors on 24th February,  1967. The  Judgment-debtors  filed a Letters Patent  Appeal  to  a Division  Bench  of  the Madhya  Pradesh  High  Court.   The Division  Bench allowed the appeal of  the  judgment-debtors and  set aside the judgment of the courts below on 2nd  May, 1968.  The decree-holder filed an application for granting a certificate  of fitness which the High Court granted by  its order  dated  18th September, 1968.  In  pursuance  of the certificate this appeal has been preferred by the appellant. The  main contention put forward by Mr. Sanghi, the  learned counsel  for the appellants, is that the  application  dated 17th  January,  1966 filed by Babulal was on behalf  of  the firm and therefore the application alleged to be under Order 21,  Rule 89, on behalf of the firm is not  maintainable  as the  earlier  application  under  Order  21,  Rule  90,  was pending.   The  learned counsel further contended  that  the application dated 7th February, 1966, was for a mere deposit of money and not an application under Order 21, Rule 89, for setting aside the sale.  In any event, it was submitted that the  courts below ought to have found that  the  application under Order 21, Rule 89, was barred by time. In  order  to  appreciate the  contentions  of  the  learned counsel,   it   is  necessary  to  set  out   the   relevant applications.   The  application filed by  Babulal  on  17th January,  1966,  is  marked as item No. 3 on p.  25  of  the printed paper book.  The cause-title mentions the  applicant as  Firm Durga Prasad Ganesh Dass, through Partner  Babulal. Bittibai,  the  Decree-holder and Himmatbhai,  the  Auction- purchaser,  are,  impleaded as respondents.   The  applicant Babulal  has filed the application as partner.  The  learned

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Single Judge construed this application as having been  made by Babulal for himself alone as 431 one of the judgment-debtors.  The plea that the  application under ,Order 21, Rule 90, was on behalf of all the Judgment- debtors was not taken before the Single Judge.  The  learned Single  Judge in fact held that Babulal’s application  dated 17th January, 1966 under 90 though made on his behalf was  a bar  to  the making of an application  dated  7th  February, 1966, under Rule 89 by other judgement-debtors when  Babulal insisted  on the sale being set aside under Order  21,  Rule 90.   The Division Bench understood the judgment of  learned Single Judge as construing the application by Babulal having been  made  on  his behalf only and not  on  behalf  of  the judgment-debtors  and  that  two  of  the   judgment-debtors Bhagwandas  ,and  Rameshwar Prasad had at  no  time  applied under  Order 21, 90. We have no hesitation in agreeing  with the  view  taken by .Single Judge as well  as  the  Division Bench  of the High Court that the application that was  made by  Babulal on January 17, 1966 was only on his  behalf  and not  on behalf of other judgment-debtors.  Even .in  special leave petition in the statement of the case. of it is stated in paragraph 3 that on 17th January, 1966, of the  judgment- debtors made an application under Order 2 1, Rule 9 From the order  of the District Judge we find that the execution  was taken  by the decree-holder separately against  the  various judgment  debtors.  In spite of. the fact that  all  through the  proceedings it understood that, the,  application  made under  Order 2 1, Rule 90, by Babulal on his  behalf  alone, the learned counsel for the appellant Mr. Sanghi, invited us to construe the, application dated 17th January, 1966  which he submitted would establish his case.  We have gone through the  document  very carefully and we find  that  though  the cause-title states the applicant as Firm Durga Prasad Ganesh Dass through Partner Babulal, it was made only by Babulal as a  part and not on behalf of the firm.  On this finding  the submission  of the 1,learned counsel, that  the  application was  made  on 17th January, 19 under Order 21, Rule  90,  by Babulal  on  behalf of all the judgment  debtors  cannot  be accepted.    The   learned  Single  Judge  found   the   the application under Order 21, Rule 89, was made on behalf four judgment-debtors,   viz.   Babulal,   Rikhilal,   Bhagwandas Rameshwar  Prasad.  This view was accepted by  the  Division Ben which held that there was a valid deposit by  Bhagwandas Rameshwar Prasad for setting aside the sale. It  was  sought to be contended that  the  application  made Babulal on 7th February, 1966, was not an application  under Order  21,  Rule  89,  but  was  only  an  application   for depositing  amount  of Rs. 29,567/99p.  The  application  is item  5  and is found .at p. 29 of the printed  paper  book. The application is stated to under Order 21, Rule 89,  Civil Procedure  Code.   The  first paragraph  mentions  that  the property  of the judgment-debtor auctioned for Rs,  46,000/- on  8th  January,  1966 and was  purchased  by  the  auction purchaser.   Second  paragraph recites  that  the  applicant wants  to  deposit a sum of Rs. 27,267/99 as  shown  in  the proclamation  of  sale and Rs. 2300/- as commission  of  the purchaser  on Rs. 46,000/-, in all a sum of  Rs.  29,567/99. There  is no specific prayer for setting aside the sale  but we  have  no hesitation in reading the application  as  one under Order 21, Rule 89.  The 432 purpose of the application is clear and in fact the  learned Judge  has  specifically stated "It has not  been  contended before  me that the application dated 7th February 1966  was

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not  an application within the meaning of Order 21  Rule  89 Civil Procedure Code." The Division Bench also proceeded  on the  basis that the application dated 7th February 1966  was under  Rule 89 and was on behalf of Babulal himself  and  on behalf of some other judgment-debtors. The learned counsel in support of his contention that unless there  is a specific plea for setting aside the  sale  under Order 21, Rule 89, the application cannot be treated as  one under Order 21, Rule 89, cited three decisions, A.I.R.  1916 Madras  717, A.I.R. 1955 Nagpur 185 and A.I.R.  1949  Bombay 313.   We  do  not  feel it  necessary  to  refer  to  those decisions  for they are clearly distinguishable and  do  not apply to the facts of this case. It was next contended that in any event no relief should  be granted  on  the  application dated 7th  February,  1966  as Babulal  being one of the judgment-debtors having  filed  an application  under  Order 21, Rule 90, is  not  entitled  to relief under Order 21, Rule 89 and to that extent the  other judgment-debtors  cannot take advantage of the deposit  made by  Babulal, at least to the extent of Babulal’s share.   We do  not  see any merit in this contention.  Apart  from  the fact  that  this point was not raised in any of  the  courts below,  we  feel that when a deposit is made by any  of  the judgment-debtors  as  required under Order 21,  Rule  89,  a proper deposit is made and the benefit for setting aside the sale would ’accrue to the other judgment-debtors.  It is not disputed that the entire amount as contemplated under  Order 21, Rule 89, had been deposited.  It is also not in  dispute that the deposit was made on behalf of the judgment-debtors. Even though Babulal’s petition under Order 21, Rule 90,  was pending, so far as the application under Order 21, Rule  89, by   other  judgment-debtors,  it  cannot  be  said  to   be ineffective  when an application has been made by  them  and the entire money as required under the rule deposited. In this view the Division Bench of the High Court was  right in setting aside the order of the Single Judge holding  that the application of Babulal under Order 21, Rule 90, did  not in  any  manner  stand in the way of  two  other  creditors, Bhagwandas  and  Rameshwar Prasad,  making  the  application under Order’21, Rule 89. The  learned  counsel for the respondent relied on  a  local amendment  made in Order 21, Rule 89, of the Code  of  Civil Procedure and submitted that the terms of the rule are  much wider  and any person claiming any interest in the  property or  acting  for  such person is  entitled  to  relief.   The amended rule runs :-               "Where  immovable  property has been  sold  in               execution of a decree, any person claiming any               interest  in the property sold at the time  of               the sale’ or at the time of 433               Petition,  or acting for, or in  the  interest               of,  such person, may apply to have  the  sale               set aside on his depositing in Court." As  we  have  found that even  without  this  amendment  the application  filed by Babulal on behalf of  other  judgment- debtors will be a valid application under Order 21, Rule 89, it is unnecessary to refer to this amendment. We  find  that there is no merit in any of  the  contentions raised by the learned counsel for the appellant.  The amount deposited by the auction-purchaser has been lying in  court. We find that under Order 21, Rule 93, the court is  entitled to  direct  repayment of the  purchase-money  and  interest. Pending  appeal  before this Court we- are  told  that  this amount was deposited in a fixed deposit account.  During the

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time  in which the amount was not earning any  interest,  we direct the judgment-debtor to pay interest at 6 per cent per annum on that amount.  From the date on which the amount was invested  in fixed deposit no interest need be paid but  the auction-purchaser  will be entitled to withdraw  the  amount covered  by  the  fixed  deposit  along  with  the  interest thereon.   As  we, are disposing of the  entire  matter  the direction  by  the Division Bench to the District  Judge  to dispose of the application under Order 2 1, Rule 89, is  set aside.  _The  result is that the  application  by  judgment- debtors under Order 21, Rule 89, will stand allowed and  the sale set aside.  "Me appeal is dismissed with costs. M. R                       Appeal dismissed. 434