K. A. SWAMI, J. ( 1 ) IN these two CRPs. , the petitioner is the same, and these petitions are preferred against a common order dt. 16th August 1978 passed by the learned Prl. Civil Judge, Belgaum, in Misc. A Ncs 150 and 151 of 1976 confirming the order dated 8-10-1976 passed by the learned Prl. Munsiff, Belgaum, in misc. Nos. 5 and 4 of 1975 respectively. ( 2 ) IT was contended on behalf of the petitioner that the application filed by the applicant in Misc. 5/75 under Order 21 Rule 89 CPC (shortly, 'the Code'), was not maintainable as he had not deposited the amount as required by that rule. It was also further contended that the notice as required! by Rule 16 of Order 21 of the Code was not necessary lince the execution was filed by the original decree-holder as well as the assignee. ( 3 ) TO appreciate the aforesaid two contentions, it is necessary to state a few facts of the case. Misc. 5/75 is filed under Order 21 rule 90 of the Code, by the original judgment debtors for setting aside the sale Of the property which is held in E. P. No. 11 of 1973 in execution of a mortgage decree passed in O. S. No. 282 of 1962, whereas Misc. 4 of 1975 is filed under Order 21 Rule 89 of the Code, within 30 days of the sale by the purchaser of the right of redemption of the original judgment-debtors on depositing a sum of Rs. 2,800 as required by the aforesaid rule for setting aside the very sale which is challenged in Misc. 5 of 1975 ( 4 ) THE Court of first instance has come to the conclusion that the provisions of Rule 16 of Order 21 of the code, are mandatory and as such, failure to issue notice to the judgment debtors has vitiated the entire execution proceeding It has also further held that the sale in question is otherwise vitiated. Accordingly it has allowed the application Misc. 5/75. Misc. 4/75 filed by the purchaser of the right of redemption has also been allowed on the ground that though the applicant has deposited only a sum of Rs. 2,800, but during the course of the execution prior to the sale of the property in question, the decree-holder has got attached Rs. Accordingly it has allowed the application Misc. 5/75. Misc. 4/75 filed by the purchaser of the right of redemption has also been allowed on the ground that though the applicant has deposited only a sum of Rs. 2,800, but during the course of the execution prior to the sale of the property in question, the decree-holder has got attached Rs. 3,300 belonging to the original judgment debtor and that amount also is available for the purpose of finding out whether there is a deposit in accordance with Rule 89 of Order 21 of the Code, in view of the fact that the applicant in Misc. 4/75 is no other that the purchaser of the right of redemption of the original judgment debtors and as the amount belonging to the original judgment debtors was attached at the instance of the decree-holder and pursuant to the attachment it was got deposited on 14-12-1973 in the execution petition; therefore the said deposit enures to the benefit of the purchaser of the right of redemption: and as such if both the amounts are put together it would be more than the amount that is required to be deposited under Order 21 Rule 89 of the Code. Accordingly application Misc. 4/75 has also been allowed. The lower Appellate Court has concurred with the aforesaid findings recorded by the Court of first instance and has dismissed the appeal. As it is already pointed out, in these two revision petitions, Sri S K. Kulkarni, learned counsel for the petitioner has put forth the very same, contentions ( 5 ) AS far as the contention based on rule 16 of Order 21 of the Code is concerned, it need not detain us long, because this Court has held in the case of Venkatamma v. Krishnappa (1 ). that the first proviso to Rule 16 of order 21 of the Code, is mandatory and failure to issue notice as per that proviso when the decree is sought to be executed by an assignee, vitiates the execution proceedings; as the executing court would not get jurisdiction to proceed with the execution unless notices as required by the first proviso are served. Therefore, the two Courts below cannot be said to have committed an error in holding that the execution proceedings are vitiated because of the failure to comply with the provision of Rule 16 of Order 21 of the code. Therefore, the two Courts below cannot be said to have committed an error in holding that the execution proceedings are vitiated because of the failure to comply with the provision of Rule 16 of Order 21 of the code. Thus, this contention cannot be accepted. Consequently, the order passed in Misc. 5 of 1975 becomes unassailable. The result is that the sale stands set aside. When once the sale stands set aside, the petitioner, being an assignee of the original mortgagee- decree holder, is only entitled to the amount due under the decree, and as such it cannot be said that he is adversely affected. No prejudice whatsoever is caused to him by allowing misc. 4/75 in view of the fact that by reason of allowing Misc. 4/75 the amount that is due under the decree which is required to be paid to him as an assignee of the decree-holder, will be readily available to him, ( 6 ) THE contention of Sri Kulkarni, learned counsel for the petitioner, is that it is applicant in Misc. 4/75 who is required to deposit the amount as per rule 89 of Order 21 of the Code, and the deposit made earlier to the filing of the application by the original judgment debtors does not enure to the benefit of the purchaser of the equity of redemption and as such, it cannot be taken into consideration. It is not possible to accept this contention. Tn this case, the sale took place prior to the coming into force of the Code of civil Procedure (Amendment) Act, 1976 (Central Act 104 of 1976 ). Therefore, Rule 88 of Order 21 as it stood in this State will govern the case. It is not possible to accept this contention. Tn this case, the sale took place prior to the coming into force of the Code of civil Procedure (Amendment) Act, 1976 (Central Act 104 of 1976 ). Therefore, Rule 88 of Order 21 as it stood in this State will govern the case. Rule 89 (1) of Order 21 of the Code, as in force in this State at the relevant point of time was as follows: "89 (1) Where immovable property has been sold in execution of a decree, the judgment debtor or any person deriving title from the judgment debtor or any person holding an interest in the property or whose interests are in the opinion of the court substantially affected by the sale may apply to have the sale set aside on his depositing in Court,- (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 as tha,t for the recovery of which the sale was ordered, less any amount which may, since the date of that proclamation of sale, have been paid or deposited towards satisfaction of the decree. Provided that where the immoveable property sold is liable to discharge a portion only of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay. " sub-Rules (2) and (3; are not relevant for our purpose. From the aforesaid provisions, it is clear that not only the judgment debtor but also any person deriving title from the judgment debtor in the immovable property sold in execution of a decree or any person holding an interest in the property or any person whose interests are in the opinion of the Court substantially affected by the sale is entitled to file an application under the aforesaid Rule for setting aside the sale. It has not been disputed that the applicant in Misc. 4/75 is a person who has derived title to the immovable property which has been sold, from the original judgment debtors even prior to the date of sale in question and as such, he is holding an interest in the property. It is also not in dispute that the amount of Rs. 4/75 is a person who has derived title to the immovable property which has been sold, from the original judgment debtors even prior to the date of sale in question and as such, he is holding an interest in the property. It is also not in dispute that the amount of Rs. 3,300 belonging to the original judgment debtors has been got attached by the petitioner-assignee of the decree prior to the issue of proclamation of sale and was got deposited in the court in the execution petition in question. As such, the said amount ought to have been deducted from the amount claimed in the execution before issuing proclamation of sale. In such a situation, if the original Judgment debtors were to make an application under Rule 89 of Order 21 of the Code, they would have very well taken into account the amount of Rs. 3,300 which was got attached and deposited into the Court in the execution, by the decree-holder for the purpose of satisfying the requirement of Rule 89 (1) of Order 21 of the Code. In the case of the applicant in Misc. 4/75 also, there is no legal obstacle whatsoever to hold that he is entitled to take into account the amount deposited by the original judgment-debtors, because he stands in the shoes of the original judgment debtors, as he is no other person than the one who has derived title from the original judgment debtors by purchasing their property in question subject to encumbrance. Thus,, he has purchased the right of redemption. Therefore, the amount which was deposited in the court by the original judgment debtors even prior to the proclamation of sale in question, as the same was not adjusted towards the amount due under the decree for which the execution was lodged, can very well be taken into account for the purpose of finding out whether the requirements of Rule 89 (1) of Order 21 of the Code, have been satisfied. The Rule specifically provides that any amount which may, since the date of proclamation of sale have been paid or deposited towards satisfaction of the decree shall be taken into account for depositing in Court the amount for payment to the decree holder as per clause (b) thereof. The Rule specifically provides that any amount which may, since the date of proclamation of sale have been paid or deposited towards satisfaction of the decree shall be taken into account for depositing in Court the amount for payment to the decree holder as per clause (b) thereof. Thus as per clauses (a) and (b) of sub-rule (1) of Rule 89 of Order 21 of the Code, applicant is required to deposit in court a sum equal to 5 per cent of the purchase money for payment to the auction purchaser and the amount specified in the sale proclamation, less any amount which has been deposited or paid towards" satisfaction of the decree subsequent to the sale proclamation though there is no specific provision for giving deduction to or for adjusting the amount paid or deposited -towards satisfaction of the decree prior to the date of proclamation sale, in the amount to be deposited in Court as per Rule 89 (1) of Order 21 of the Code, if such amount has remained unadjusted and the amount mentioned in the proclamation of sale does not give credit to such a deposit or payment made towards the satisfaction of the decree, I do not see any reason whatsoever as to why such deposit or payment should hot be taken into account for the purpose of finding out whether the amount has been deposited by the applicant as per Rule 89 (1) (a) and (b) of Order 21 of the Code, especially whan there is no prohibition contained in the Rule. Further no prejudice or injustice is caused either to the decree-holder or to the auction purchaser as each of them will get the amount to which each of them is entitled to as per the decree and as per Rule 89 (1) of Order 21 of the Code. Therefore, it is open for the applicant to take into account the previous deposits made in the execution towards the satisfaction of the decree for the purpose of complying with the requirements of Rule 89 (1) of Order 21 of the Code. Hence, this contention also cannot succeed. ( 7 ) EVEN otherwise, as it is already pointed out, allowing of Misc. Hence, this contention also cannot succeed. ( 7 ) EVEN otherwise, as it is already pointed out, allowing of Misc. 4 of 1975 is in the interest of the assignee of the decree, because as a result thereof, without further pursuing the execution, the assignee of the decree will be able to receive two items of deposits i. e. , Rs. 2,800 and Rs. 3,300 which are sufficient to satisfy the decree. Therefore, on this ground also, the 2nd contention cannot be accepted. ( 8 ) FOR the reasons stated above, I do not see any ground to admit both these civil revision petitions. Accordingly, they are rejected. --- *** --- .