Judgment :- 1. In this revision Mr. C. K. Viswanatha Iyer, learned counsel for the judgment-debtor-petitioner, challenges the concurrent orders of the subordinate courts holding that the deposit made by the petitioner for setting aside a sale under Order XXI, R.89 is not in accordance with the provisions contained in O. XXI, R.89, C. P. C. 2. The findings recorded by the two subordinate courts are twofold namely, (a) that the amount deposited by the judgment-debtor is not the correct amount as contemplated under Order XXI, R.89; and - (b) that the deposit made by the judgment-debtor is not an unconditional deposit, as is mandatory under 0. XXI, R.89. 3. It is necessary to state a few facts leading up to the filing of the application by the judgment-debtor in E. A. 403/64. In execution of the decree obtained by the plaintiff-respondent in O. S.114/57, Munsiff's Court, Chittur, the properties of the petitioner were brought to sale. It is seen that originally the sale was intended to take place on 16th March 1964 and ultimately the sale actually took place on 30th March 1964. The decree-holder himself purchased the properties for a sum of Rs. 1,909.75p. 4. The petitioner filed on 18th May 1964, E. A. 403/64 to set aside the sale, under Order XXI, R.89 accompanied by deposit of the sum of Rs. 2,010. In fact, according to the petitioner, he has deposited an amount which is larger than is contemplated under O. XXI, R.89 and in the said application itself he has stated that if any amount more than that he is bound to deposit is to be deposited a refund must be made of the excess amount. He also states that if there is any deficiency, he may be permitted to make good the balance till such time as the court may grant. The deposit was of a sum of Rs. 2,010. 5. The trial court is of the view that the amount due under the sale proclamation is a sum of Rs. 1,909.75p. and that the petitioner has deposited only a sum of Rs. 1,888 towards this though it was urged by the petitioner that apart from this amount and the 5 per cent payment on the purchase-money payable to the purchaser has been deposited he has also deposited a sum of Rs. 1,909.75p. and that the petitioner has deposited only a sum of Rs. 1,888 towards this though it was urged by the petitioner that apart from this amount and the 5 per cent payment on the purchase-money payable to the purchaser has been deposited he has also deposited a sum of Rs. 14.30 p. in excess and having due regard to all these the total deposit made by him is Sufficient as contemplated under O. XXI, R.89, CPC. But the trial court has not considered as to what other excess amount if any the petitioner has deposited apart from the deposit for payment to the purchaser of a sum equal to 5 per cent of the purchase-money. But proceeding on the basis that as against the sum of Rs. 1, 909.75 p. mentioned in the sale proclamation the petitioner has deposited only Rs. 1,888 under this head the trial court is of the view that there is a shortage in the deposit which cannot be condoned. The second aspect that has been considered by the trial court is as to whether the deposit in this case, even if it is sufficient, is an unconditional deposit or a conditional deposit. Both sides have accepted the position that a deposit under O. XXI, R.89 must be an unconditional deposit, as contemplated under that provision. But in this case, the trial court refers to the fact that the petitioner has made a request in another application filed by him, claiming certain rights under the provisions of Kerala Act 1 of 1964, and he has stated therein that he will be entitled to a refund of certain amounts from and out of the deposit made by him. This stand taken by the petitioner, according to the lower court must be considered to be to the effect that the deposit made by him under O. XXI, R.89 is not an unconditional one, but really a conditional deposit which cannot be permitted under that provision. Therefore the trial court takes the view that the deposit even if it is considered to be of the correct amount must be held to be a conditional deposit and on that ground also the petitioner cannot be considered to be entitled to any relief under O. XXI, R.89, and ultimately the application filed by the petitioner was rejected. 6. Therefore the trial court takes the view that the deposit even if it is considered to be of the correct amount must be held to be a conditional deposit and on that ground also the petitioner cannot be considered to be entitled to any relief under O. XXI, R.89, and ultimately the application filed by the petitioner was rejected. 6. The petitioner carried the matter in appeal before the learned District Judge, Palghat, in C. M. A. 32/64. Before the learned District Judge, the petitioner urged that the views expressed by the trial court on both aspects for rejecting E. A. 403/64 are not correct. The learned District Judge considers as to whether the amount deposited by the petitioner is in accordance with O. XXI, R.89. In considering this aspect, the learned District Judge is of the view that the amount shown in the sale proclamation for the sale, which was fixed to 16th March 1964 is Rs. 2,405.75p. and the learned District Judge also takes note of the fact that the sale itself took place only on 30th March 1964 within which time admittedly a sum of Rs. 500 was paid by the judgment-debtor to the decree-holder. Therefore, the learned District Judge ultimately fixes the amount payable to the decree-holder on the basis of the sale proclamation in the sum of Rs. 1905.75p. There is a slight discrepancy in the amount fixed by the trial court which is Rs. 1909.75p. and that fixed by the appellate court namely 1905.75p. But for the purpose of this revision, I have proceeded on the basis that the amount referred by the learned Munsiff is the correct one and considered the question as to whether the deposit made by the petitioner is correct or not. 7. The learned District Judge then is of the view that inasmuch as the amount payable to the decree-holder is Rs. 1905.75p. as per his calculations, and as the amount deposited by the petitioner under this head is only Rs. 1888, the deposit is not sufficient. The learned District Judge also so far as I could see, excepting referring to the fact that 5 per cent payable to the purchaser representing Rs. 95.48p. has also been deposited, does not consider the further question as to whether any further amount has been deposited by the petitioner. 1888, the deposit is not sufficient. The learned District Judge also so far as I could see, excepting referring to the fact that 5 per cent payable to the purchaser representing Rs. 95.48p. has also been deposited, does not consider the further question as to whether any further amount has been deposited by the petitioner. Ultimately the learned District Judge also comes to the conclusion that the deposit made by the petitioner cannot be considered to be sufficient and be agrees with the findings of the trial court on this aspect that there is a shortage in the amount that is to be correctly deposited by the petitioner: The learned District Judge then adverts to the second reason given by the learned Munsiff; namely as to whether the deposit made by the petitioner is an unconditional one or a conditional one. In that connection the learned District Judge takes note of an application filed by the petitioner in E. A. 413/64 wherein he has stated that he will be entitled to relief under Kerala Act 1/64 and that from and out of the amount deposited by him in E. A. 403/64 he will be entitled to a refund. The learned District judge, though on two occasions refers to the fact that numerous decisions have been cited by the learned counsel for the petitioner to the effect that reservation of a right to claim relief under any other statute is no bar to claiming relief in an application under Order XXI, R.89 and on that ground it cannot be considered to be a conditional deposit and though the learned judge also refers to the fact that decisions were cited by the petitioner, to the effect that a request made in other applications filed by the judgment-debtor to withhold payment of amount deposited under Order XXI, R.89, cannot be construed as making the deposit under Order XXI, R.89 conditional, nevertheless this court does not have the benefit of a consideration by the learned judge of any of those decisions nor the views of the learned judge on that aspect. In fact the lower court has not stated what those decisions are 8. In fact no decision as such has been referred to by the learned judge nor his views expressed regarding those decisions. In fact the lower court has not stated what those decisions are 8. In fact no decision as such has been referred to by the learned judge nor his views expressed regarding those decisions. But the learned judge so far as I could see, is prepared to proceed on the basis that the application filed by the petitioner namely E. A. 403/64 under Order XXI, R.89, as well as the application filed by the petitioner in E. A. 413/64 claiming relief under Kerala Act 1/64 must be considered to form part of one and the same application filed by the petitioner under Order XXI, R.89; and if so understood the position according to the learned judge is that inasmuch as the petitioner has made a simultaneous request to set aside the sale and to pay a portion of the amount deposited by him to himself it must be considered that the deposit under Order XXI, R.89, has been made by him not unconditionally but conditionally which is not permitted by the Code. Therefore ultimately the learned judge agrees with the findings recorded by the learned Munsiff on both aspects and dismissed the appeal. 9. Mr. C. K. Viswanatha Iyer, learned counsel for petitioner attacks the view expressed by both the subordinate courts on both the aspects. The learned counsel pointed out that according to the sale proclamation on the basis of which the properties were sold the total amount as shown due to the decree-holder was Rs. 2, 405.75p. Out of this amount as found by the learned District Judge a sum of Rs. 500 has been paid. Whether the balance amount payable by the decree-holder is Rs. 1, 905.75p. as held by the learned District Judge, or Rs. 1,909.75p. as held by the trial court both the courts have held that apart from the sum of Rs. 1888, the petitioner has admittedly paid 5 per cent of the purchase money being Rs. 95.48p. payable to the purchaser. Over and above these two amounts, the learned counsel pointed out that the petitioner has admittedly deposited certain additional amounts, which will make up a sum of Rs. 2, 010 whereas according to the petitioner he is bound to deposit only Rs. 1,997-80 p. Therefore the learned counsel pointed out that the view expressed by the two courts that the a mount deposited is not correct is erroneous. 2, 010 whereas according to the petitioner he is bound to deposit only Rs. 1,997-80 p. Therefore the learned counsel pointed out that the view expressed by the two courts that the a mount deposited is not correct is erroneous. In E. A. 403/64 there is absolutely no reservation or qualification made by the petitioner which can in any way be construed to be that the deposit is anything but an unconditional deposit. The mere fact that in another application filed by him no doubt on the same date in E, A. 413/64 he has stated that he is entitled to the benefits under S.73 of Kerala Act 1/64 will not in any way constitute the deposit in E. A. 403/64 as a conditional deposit. 10. The learned counsel also referred me to the decision of Mr. Justice Viswanatha Sastri of the Andhra Pradesh High Court as well as a Division Bench judgment of the Madras High Court reported in Jaganatha Iyer v. Krishna Iyer AIR. 1962 Madras 99. As the decision of the Andha Pradesh High Court has been referred to in the later Madras decision I do not think it necessary to separately refer to that decision. 11. Mr. V. Balakrishna Eradi, learned counsel for the plaintiff-respondent rather strenuously urged that the views expressed by the two courts on both the aspects, are perfectly correct. In fact, the learned counsel also urged that the amount deposited by the petitioner, is not correct because the amount stated in the sale proclamation, according to him, has not been deposited. In order to check up this aspect the further hearing of this C. R P. was adjourned for a short time to enable this Court to have the sale proclamation on the basis of which sale was actually held. It is now found from the sale proclamation that the amount that has been deposited by the petitioner namely Rs. 2,010 is a proper deposit as required by the Code. Under Order XXI, R.89 it will be seen that the judgment-debtor or any person deriving title from him and who wants to have the sale set aside will have to deposit (a) for payment to the purchaser a sum equal to 5 per cent of the purchase-money; and (b) for payment to the decree-holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered. I am omitting the latter part of clause (b) in Order XXI, R.89 sub-rule(1) because that provides for the deduction of any amount that may have been since received by the decree-holder and that has been given credit to by the learned judge this case also. 12. Both the courts so far as I could see have held that the petitioner has certainly deposited the requisite amount as contemplated under clause (a) of sub-rule (1) of Order XXI. R.89. That is a sum of Rs. 95.48p. In fact, the petitioner has deposited Rs. 95.50p. under this head. There was controversy only regarding the sufficiency of the amount covered by clause (b) of sub-rule (1)of Order XXI, R.89. 13. So far as that is concerned it is now seen from the sale proclamation that having due regard to the balance amount deposited by the petitioner, deducting the sum of Rs. 95.50p. that deposit really represents the amount which the petitioner is bound to deposit under Order XXI, R.89 sub-rule (1), clause (b). Therefore that controversy has now practically dwindled into insignificance; and Mr V. Balakrishna Eradi, learned counsel for the plaintiff respondent quite fairly after looking into the sale proclamation has not pursued this contention any further. Therefore it follows that the views expressed by both the courts, that the amount deposited by the petitioner is not sufficient as contemplated under Order XXI, R.89 cannot be accepted. 14. Then the other question which has been very hotly contested by the learned counsel for the respondent, is the stand taken by Mr. C K. Viswanatha Iyer that the deposit in this case cannot be considered to be unconditional. The petitioner filed on 18th May 1964 E. A 403/64 accompanied by deposit of Rs. 2,010 requesting the court to set aside the sale under Order XXI, R.89. So far as I could see in that application the learned counsel for the respondent has not been able to show that there is any reservation or qualification or condition attached to the deposit. There is not even an averment that the petitioner is making a deposit subject to any rights that he may have in any other application nor does he make the deposit under protest. There is not even an averment that the petitioner is making a deposit subject to any rights that he may have in any other application nor does he make the deposit under protest. In fact, the petitioner goes to the extent of saying that if there is any deficit in the amount deposited by him he is prepared to make good the deficit. No doubt he further states that if there is any excess deposit made by him he may be permitted to withdraw the same. The learned counsel for the respondent quite fairly has not relied upon the latter request, referred to by me as in any way making the deposit conditional. 15. Mr. V. Balakrishna Eradi very strenuously relied upon another application that was filed by the petitioner on the same dale namely E. A. 413/64 the averments in which according to the learned counsel will clearly show that the petitioner was not making the deposit in E. A. 403/64 unconditionally. According to the learned counsel the petitioner was placing a restriction on the unqualified right of the decree-holder to draw the amount deposited under Order XXI, R.89. There is no controversy that on the same date namely 18th May 1964, the petitioner filed an application E. A. 413/64 wherein he has stated that he is entitled to relief under S.73 of Kerala Act 1/1964 in which case the decree-holder will be entitled only to a sum of Rs. 1, 455.62p. from and out of the deposit made by him in E. A. 403/64. Later on 20th May 1964 he has filed another application E. A. 421/64 to the effect that the decree-holder will be entitled only to a lesser amount than that mentioned by him in E. A. 413/64. It is also seen that E. A. 421/64 was dismissed by the trial court and revision taken as against that order in C. R. P. 639/64 was dismissed as not pressed by this Court on 10th June 1965. The question is as to whether the fact that the petitioner filed E. A. 413/64 claiming rights under Act 1/64 can in any way be considered to constitute the deposit made in E. A. 403/64 as a conditional deposit. 16. The question is as to whether the fact that the petitioner filed E. A. 413/64 claiming rights under Act 1/64 can in any way be considered to constitute the deposit made in E. A. 403/64 as a conditional deposit. 16. No doubt I am aware of the contention of the learned counsel for the respondent that E. A, 403/64, the one under Order XXI, R.89 and E. A. 413/64, claiming relief under Act 1/64 were both filed in the same E. P. 535/63 under which the properties were ultimately sold. Therefore according to the respondent, both these applications must be considered part and parcel of the same relief asked for by the petitioner under Order XXI, R.89, in which case, the learned counsel urges that there was a restriction imposed by the petitioner on the right of the respondent, drawing out the money as he is otherwise entitled to in E. A, 403/64. 17. Mr. C. K. Viswanatha Iyer has referred me to the decision of Ramachandra Iyer and Kunhamed Kutti, JJ. in Jagannatha Iyer v. Krishna Iyer AIR. 1962 Madras 99. No doubt some observations contained in that judgment have also been relied upon by the learned counsel for the respondent. In that decision, it will be seen that the application filed under Order XXI, R.89 itself contained a further recital to the effect that the said petition is filed without prejudice to the reliefs asked for by the party in two other applications namely E. A. 631 and 632/57. That application filed under Order XXI, R.89 was contested by the decree-holder as amounting only to a conditional deposit. This question was considered by the learned judges, having due regard to the principles laid down by Mr. Justice Venkatasubba Rao in Kumukutty v. Munnodath AIR. 1930 Mad. 921 which decision was also approved later by a Full Bench decision of the Madras High Court in Krishna Ayyar v. Arunachalam AIR. 1935 Madras 842. In fact, Mr. V. Balakrishna Eradi has placed reliance upon those decisions and I will refer to them a little later. 18. But in Jagannatha Iyer v. Krishna Iyer AIR. 1962 Madras 99 Mr. Justice Ramachandra Iyer as he then was refers to the fact that sub-rule (I) of Order XXI, R.89 requires that the money should be deposited for payment to the decree-holder and the auction-purchaser. 18. But in Jagannatha Iyer v. Krishna Iyer AIR. 1962 Madras 99 Mr. Justice Ramachandra Iyer as he then was refers to the fact that sub-rule (I) of Order XXI, R.89 requires that the money should be deposited for payment to the decree-holder and the auction-purchaser. The learned judge also refers to the fact that the said condition necessarily implies that no impediment or restraint should be placed on the persons withdrawing the amount deposited, inasmuch as the deposit is for the specific purpose of being paid over to them. To illustrate this, the learned judge refers to the fact that nothing should be said or done which would impair that right to withdraw the amount namely that there should be no payment under protest nor the decree-holders be required to give security, etc. These observations will clearly show that the application filed by a party under Order XXI, R.89 should not contain any of these impediments, referred to by the learned judges. 19. Prima facie in my view, going by the averments contained in E. A. 403/64 in the case before me, there is absolutely no such restriction or qualification incorporated by the petitioner regarding the right of the decree-holder to draw the amount. Ultimately the learned judges have held that the mere fact that in a collateral proceeding, a party files an affidavit with a statement accompanying the petition under Order XXI, R.89 that the deposit is made without prejudice to his rights in those collateral proceedings can only be considered to be a statement of fact of certain legal rights; but those statements, the learned judges emphasise cannot be considered to contravene the provisions of Order XXI, R.89. Ultimately the learned judges, notwithstanding the fact that the application before them made under Order XXI, R.89 contained a reservation to the effect that the said application was filed without prejudice to the two other applications referred to therein and adverted to by me earlier, nevertheless held that the deposit was an unconditional one in that case. Mr. V. Balakrishna Eradi no doubt referred to the observations of the learned judges at page 102, to the effect that a deposit under Order XXI, R.89 CPC. should be unconditional in the sense that it should not contravene the terms of that rule or frustrate its object. Mr. V. Balakrishna Eradi no doubt referred to the observations of the learned judges at page 102, to the effect that a deposit under Order XXI, R.89 CPC. should be unconditional in the sense that it should not contravene the terms of that rule or frustrate its object. That is, according to the learned judges the deposit should not be accompanied by any request or statement preventing the decree-holder and auction-purchaser from unconditionally withdrawing the amount payable to them respectively. 20. In my opinion, those observations have to be understood in the context of what is already referred to by the learned judges in Para.4 of their decision to the effect that a deposit under sub-rule (1) of Order XXI, R.89 should be such without imparting the right of the parties referred to therein to withdraw the amount namely that there should be no payment under protest nor should there be a requirement that the amount, is to be drawn under security. It is in that context, that the observations occurring at page 102 and relied upon by the learned counsel for the respondent will have to be understood, and ultimately the decision of the learned judges is that a mere reservation of a right in certain other petitions will not certainly constitute a deposit under Order XXI, R.89 as a conditional deposit. In fact, the learned judges have also referred to the decision of Mr. Justice Venkatasubba Rao in Kumukutty v. Munnodath AIR 1930 Mad. 921. In the latter decision, it will be seen that the learned judge had to consider a case where a party making a deposit under Order XXI, R.89 for setting aside the sale requested the court to take security from the decree-holder before paying the amount. The learned judge if I may say so with great respect, quite rightly reversed the order of the trial court, accepting such a request made by the judgment-debtor. The learned judge emphasises at page 923 that Order XXI, R.89 is inconsistent with the notion that payment can be made either under protest or coupled with conditions. 21. In the later Full Bench decision of the Madras High Court in Krishna Ayyar v. Arunachalam AIR. 1935 Madras 842 it will be seen that the amount was deposited under protest; and the Full Bench held that it cannot be considered to be an unconditional deposit. 21. In the later Full Bench decision of the Madras High Court in Krishna Ayyar v. Arunachalam AIR. 1935 Madras 842 it will be seen that the amount was deposited under protest; and the Full Bench held that it cannot be considered to be an unconditional deposit. The Full Bench approves of the decision of Mr. Justice Venkatasubba Rao in Kumukutty v. Munnodath AIR. 1930 Mad. 921. But it will be seen that the Full Bench itself proceeds on the basis that the application was one making a deposit under protest and they also refer to the fact that O. XXI R.89 does not permit such a conditional deposit. But the Full Bench ultimately is of the view that the reservation of any collateral rights will not constitute a deposit, as anything but unconditional. 22. In my view, the support sought to be derived by Mr. V. Balakrishna Eradi on the decision of Mr. Justice Venkatasubba Rao or the decision of the Full Bench referred to above or from the observations contained at page 102 of the decision of the Madras High Court reported in Jagannatha Iyer v. Krishna Iyer AIR. 1962 Madras 99 do not compel me to accept the view expressed by the two subordinate courts that in this case the deposit in E. A. 403/64 is a conditional deposit. AH those decisions deal with cases where the main application, filed under O. XXI, R.89 itself is made subject to protest or requiring the amount to be paid to the decree-holder or auction-purchaser on security. Such a type of deposit has been considered to be a conditional deposit. 23. There can be no gainsaying the fact that an application under O. XXI, R.89 must be an unconditional application placing no restriction whatsoever on the parties referred to therein in the matter of withdrawing the amount. 24. In this case the claim made by the petitioner in E. A. 413/64 is an independent one based upon the provisions of Kerala Act 1 of 1964. The mere fact that he made such a claim on the same date, when he filed an application under O. XXI, R.89 in my view, cannot constitute the later application as constituting a conditional deposit. I have already adverted to the fact that the recent judgment of the Madras High Court in Jagannatha Iyer v. Krishna Iyer AIR. The mere fact that he made such a claim on the same date, when he filed an application under O. XXI, R.89 in my view, cannot constitute the later application as constituting a conditional deposit. I have already adverted to the fact that the recent judgment of the Madras High Court in Jagannatha Iyer v. Krishna Iyer AIR. 1962 Madras 99 has held that the mere fact that in an application under 0.21, R.89, a party has stated that it is made subject to the decision in two other applications specifically referred to therein nevertheless, it has been held that it is not a conditional deposit. More so, in the case before me in E. A. 403/64, which is the one under 6. XXI, R.89, there is absolutely no restriction or condition nor is the deposit stated to be under protect. If so, it follows that even on the second aspect that the deposit made in E. A. 403/64 is a conditional deposit as expressed by the two courts will have to be set aside. 25. The result is that the decisions of both the subordinate courts are set aside and this CRP. allowed. Parties will bear their own costs. Allowed.