KANTILAL NAGJIBHAI SHAH v. TARABEM OCCHAVLAL SHAH — 1995 DIGILAW 75 (GUJ)

J. N. BHATT, J. ( 1 ) THE petitioner is the judgment debtor who has challenged the judgment and order passed in Regular Civil Appeal No. 3 of 1991 on 2 October 1993 by the learned District Judge at Baroda in Misc. Civil Appeal No. 3 of 1991. ( 2 ) REGULAR Civil Execution Petition No. 165 of 1991 was filed in the court of learned Civil judge (J. D.) at Sinor by the respondent No. 1 - Taraben Ochhavlal Shah against deceased Kantilal Nagjibhai Shah to recover an amount of Rs. 5 209. 34 Ps. wherein immoveable properly in the said execution petition was ordered to be auctioned as per the provisions of Civil Procedure Code. In the said application respondent No. 2 Vasantlal Ambalal Soni had taken part as an Auction Purchaser. He had given highest bid of a sum of Rs. 46 200 and deposited the said amount in the trial court between 3rd July 1986 and 29. 7. 1986. The original judgment-debtor deceased Kantilal had filed application Ex. 27 for stay of the execution proceedings. Respondent No. 2 filed an application Ex. 29 and prayed for execution of the sale deed for which aforesaid amount was deposited in the court. Objections were raised by the judgment-debtor against the auction. After hearing the parties executing court passed the order on 31 December 1990 dismissing the application filed by the judgment debtor and allowed the application filed by respondent No. 2 - Vasantlal Ambalal. ( 3 ) BEING dissatisfied by the said order the petitioner had filed Civil Misc. Appeal No. 3 of 1991 under Order 43 Rule 1 Civil Procedure Code in the District Court at Baroda who allowed the appeal by the order dated 22nd October 1992 directing the trial court to issue fresh proclamations under Civil Procedure Code with other appropriate directions for proceeding with the matter. In that appeal while passing the said order the learned District Judge has also directed that the auction purchaser should be refunded an amount of Rs. 46 200 with interest at the rate of 12%. He found that auction purchaser deposited the said amount on 9. 7. 1986 and it remained in court without any interest and he has suffered damages and therefore judgment debtor should be saddled with the liability of interest. 46 200 with interest at the rate of 12%. He found that auction purchaser deposited the said amount on 9. 7. 1986 and it remained in court without any interest and he has suffered damages and therefore judgment debtor should be saddled with the liability of interest. The District Court therefore passed the direction in the said appeal while setting aside ale proclamation proceedings and to refund amount of Rs. 46 200 and further directing the judgment debtor to pay interest at the rate of 12% from 29. 7 till date of realisation. Being aggrieved by said direction against the judgment debtor this revision is filed by the petitioner judgment-debtor under Sec. 115 of the Code. ( 4 ) AFTER hearing learned advocates appearing for the parties and considering the facts and circumstances and the tenure of the impugned order in the light of the Order 21 Rule 93 of the Civil Procedure Code this court has no hesitation in finding that the impugned order directing the petitioner to pay interest at the rate of 12% on the sum of Rs. 46 200 as the amount has remained idle in the court is running counter to the provisions of Order 21 Rule 93 of the Code. ( 5 ) ORDER 21 Rule 93 makes provision of return of purchase-money in certain cases. While-setting aside the sale under Order 21 Rule 92 the court is empowered to pass an order for repayment of purchase money with or without interest as the court may direct and that too against any person to whom it has been paid. Emphasis is led on the words against any person to whom it has been paid are not properly appreciated by the learned District Judge. The trial court lost sight of the fact that the amount of purchase money deposited by the auction purchaser in the court was not paid to the judgment debtor. The discretion conferred under Order 21 Rule 93 to the court to return purchase money in certain cases with or without interest giving direction against any person to whom it has been paid. Could it be said that the deposit of any amount of purchase money made in the court by the auction purchaser before finalisation of the sale proceedings pending before the executing court is the amount paid to the judgment debtor ? Could it be said that the deposit of any amount of purchase money made in the court by the auction purchaser before finalisation of the sale proceedings pending before the executing court is the amount paid to the judgment debtor ? The learned District Judge has failed to consider that material relevant aspect. With the result it has resulted into failure of justice. Exercise of power contemplated under Order 21 Rule 93 ordinarily should not be interfered with and that too in a revision under Sec. 115 of the Code. However in the present case the direction of payment of interest at the rate of 12% is passed against the person who was never paid the amount. The deposited amount pending before the executing court without any order with regard to disbursement of the same can be said to be a payment made to the party. This is the short question which unfortunately has not been appreciated in its proper and correct perspective while interpreting the provision of Order 21 Rule 93 Therefore in the opinion of this court the impugned order is perverse and contrary to the provision of law it must therefore be quashed and set aside while exercising powers under Section 115 of the Code. 6 Learned advocate Mr. Sanjanwala appearing for the auction purchaser has forcefully supported the impugned order placing reliance on the decision of the Supreme Court rendered in the ease of Hindi Pracharak Prakashak and Anr. vs. G. K. Brothers AIR 1990 SC 2221 . It is true that in that ease interest is awarded at the rate of 12% on the amount of purchase money refunded to the auction purchaser from the judgment debtor. However that was necessitated because there was satisfacation of the decree and the counsel for the decree holder had stated before the Supreme Court in that case that the decree has been satisfied by deposit of decretal dues in the Registry of the Supreme Court. In the circumstances the order was passed in that case to the effect that decree had been satisfied and sale which has yet not been confirmed we quashed and the purchase money deposited in the court came to be refunded with interest at the rate of 12% per annum from the judgment debtor. In the circumstances the order was passed in that case to the effect that decree had been satisfied and sale which has yet not been confirmed we quashed and the purchase money deposited in the court came to be refunded with interest at the rate of 12% per annum from the judgment debtor. Ratio propounded in the said decision by the Apex Court is not attracted in the light of the facts and circumstances of the present case. 7 With the result this revision is required to be allowed setting aside the impugned order of the learned District Judge. Accordingly the revision with regard to impugned order to the extent of direction for payment of interest only is allowed. Accordingly this revision is allowed. Impugned direction to pay interest contained in the order passed by the learned District Judge at Baroda in Civil Misc. Appeal No. 3 of 1991 is quashed and set aside. Rule is made absolute accordingly with no order as to costs. Revision Allowed. .