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1999 DIGILAW 41 (KAR)

C. S. PALANI SWAMY v. B. R. NANJUNDA SWAMY

1999-01-18

MOHAMED ANWAR

body1999
MOHAMED ANWAR, J. ( 1 ) HEARD the arguments of learned Counsel for both sides. ( 2 ) THESE two Revisions have arisen from the common order of the court below, dated 2. 12. 1996, made on I. As. 16 and 18 in execution Case No. 37 of 1989 pending on its file. ( 3 ) A few undisputed facts giving rise to these revisions are as stated under: respondent Sank (hereinafter referred to as 'decree Holder') had obtained a mortgage decree in O. S. No. 42/1987 against three defendants therein towards recovery of Rs. 11,30,481/- together with interest etc. , The said decree was put to execution by the Decree Holder in Execution Case No. 37/1989 in the Trial Court. In execution proceeding certain immoveable properties of Judgment-Debtors were brought to sale in Court Auction held on 9. 8. 1991. At the said auction sale, petition- erinc. R P. No. 827/1997 purchased a house of the Judgment-Debtors for Rs. 4,55,000/-, and the petitioner in C. R. P. No. 828/1997 purchased two house sites of the Judgment- debtors for Rs. 1,77,500/-, both purchasers being the successful bidders at the said auction. Accordingly, 25% of the sale consideration was deposited by each of them on the date of sale itself and the balance of the sale consideration was deposited by both in the executing Court on 19. 8. 1991. . ( 4 ) THEREAFTER, the Judgment Debtors in the said Ex. No. 37/1989 made their respective applications under Order 21 Rule 90, c. P. C. praying to set aside the said sale. Their applications came to be dismissed by the Court below by its order dated 10. 1. 1992. That order was challenged by them before this Court in M. F. A. No. 999/92. Pending disposal of the said appeal, an interim order staying further proceedings in Ex. Case No. Ex. 37/1989 was also obtained by the appellants. However, the said appeal was finally dismissed on merits by order dated 13. 6. 1996 of this Court, with the result, the said sale of their immovable properties in favour of each of the petitioners herein came to be confirmed by the Executing court on 4. 1. 1996. In the meanwhile, on the respective application made by the petitioners/purchasers in the said M. F. A. No. 999/1992, an order dated 6. 9. 6. 1996 of this Court, with the result, the said sale of their immovable properties in favour of each of the petitioners herein came to be confirmed by the Executing court on 4. 1. 1996. In the meanwhile, on the respective application made by the petitioners/purchasers in the said M. F. A. No. 999/1992, an order dated 6. 9. 1992 was passed by this Court directing the Executing Court to transfer the said purchase money to the Decre-Holder Bank so that it may tarn the interest thereon. As on the date of confirmation of sale i. e. on 4. 9. 1996, the total amount of interest accrued on the said purchase amount which was deposited with the Decree-Holder Bank was stated to be Rs. 3,24,289/ -. Indisputably, the purchasers took possession of their respective purchased items of property through the Executing Court on 20. 10. 1996. ( 5 ) THEREAFTER, both the petitioners made applications before the Executing Court claiming the said interest amount proportionately on the ground that till confirmation of the sale of the said respective property made in their favour on 4. 9. 1996 by it, the said money belonged to them and, therefore, they were entitled to get the proportionate interest thereon. By its impugned order dated 2. 12. 1996, the executing Court has dismissed their applications holding they are not entitled to the said interest, while allowing Decree-Holder Bank's i. A. No. 16 filed claiming the said interest amount, with a finding that it is entitled to the same. ( 6 ) THEREFORE, the short point which calls for determination is : whether petitioners are legally entitled to claim the said interest amount proportionately on their respective purchase money, and if not, what order? ( 7 ) AS indicated above, the said respective items of immoveable properties belonging to the Judgment-Debtor in Ex. Case No. 37/ 1989 were sold to the petitioners on 9. 8. 1991 at the auction sale held by the Executing Court and that the said respective sale came to be confirmed by it in their favour on 4. 9. 1996. The whole of the sale consideration was also deposited by them with the Court below on 19. 8. 1991 which amounts were transferred in deposit to the Decree-Holder Bank pursuant to order dated 6. 9. 1992 of this Court made in the said M. F. A. No. 999/1992. 9. 1996. The whole of the sale consideration was also deposited by them with the Court below on 19. 8. 1991 which amounts were transferred in deposit to the Decree-Holder Bank pursuant to order dated 6. 9. 1992 of this Court made in the said M. F. A. No. 999/1992. The petitioners/purchasers entitlement to the said interest was solely dependent on the time at which the title to the property purchased vested in them, since from that moment onwards they became owners of the respective purchased property and they had no right whatever over the purchase money deposited by them. This legal possession has been effectively dealt with by Section 65 of C. P. C. which reads :"where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute". Section 65 plainly speaks that the title of the purchaser to the property purchased at the court auction sale vests in the purchaser at and from the time when the property was sold in auction and not from the time when the sale became absolute by virtue of its confirmation order made by the Executing Court after acceptance of the said sale. Therefore, in view of this crystal clear position of law, both petitioners are deemed to have become absolute owners of the respective purchased items of property on the date of their sale i. e. 9. 8. 1991. As a consequence of this legal position, their said purchase money deposited with the Executing Court constituted the sale consideration for the said property and they lost their right over it in lieu there of. In that view of the matter they are not entitled in law to claim the said interest amount accrued on the purchase money. Therefore, the impugned order of the court made below in so far as rejecting their said claim cannot be faulted with as it is legally correct order. ( 8 ) BUT then the next question is whether the further impugned order by which Decree- holder Bank is held entitled to the said interest amount is legally sustainable and if not who is entitled to the sale. ( 8 ) BUT then the next question is whether the further impugned order by which Decree- holder Bank is held entitled to the said interest amount is legally sustainable and if not who is entitled to the sale. Admittedly, the date when the said purchase money was deposited in the executing Court, the same was not transferred or paid to Decree-Holder Bank in full or part satisfaction of the decree under execution. It was submitted at the Bar that the said purchase money was in fact adjusted towards execution in part satisfaction of the decree by the Execution Court on 4. 12. 1996 and till then it was lying in suspense account with it. Therefore, the decree Holder actually realised the said amount on 4. 12. 1996 as its money in due course of execution of the decree and not prior to that day. Till then, the said money was lying in deposit with it merely as the sale consideration for the Judgment-Debtors' properties which were sold at the Court auction sale. Since whole of the said money was the sale consideration of the Judgment-Debtors' property, they were the rightful owners thereof till the same was recovered by the Decree- holder by order of the Executing Court towards satisfaction of the said decree which was infact made on 4. 12. 1996. Therefore, whatever interest amount that was accrued on the said sale consideration of the Judgment-Debtors belonged to them. In that view of the matter, they are entitled to the said interest amount and the same shall have to be paid over to them or the same may be adjusted towards the payment of balance amount, if any, payable by them under the said decree. If any excess amount of interest remains after full satisfaction of the decree, the same shall be paid to the respective Judgment Debtors. ( 9 ) FOR the reasons stated above, both these revisions are partly allowed setting aside that portion of the order impugned by which decree-Holder Bank was declared entitled to the interest amount of Rs. 3,24,289/-, and they stand disposed of in the terms stated above. Parties to bear their own costs. Revision allowed partly. --- *** --- .