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2008 DIGILAW 578 (CAL)

Latika Bhar v. Jyotsna Dey

2008-06-11

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

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Judgment : BHASKAR BHATTACHARYA, J. (1) THIS First Miscellaneous Appeal is at the instance of the heirs of a judgment-debtor in the proceedings for execution arising out of a decree for sale in a suit relating to Mortgage and is directed against Order No. 171 dated 26th March, 2002 passed by the learned Executing court by which an application under Order 21 Rule 89 of the Code of Civil procedure filed by the original judgment-debtor has been rejected. (2) BEING dissatisfied, the heirs and legal representatives of the judgment-debtor have come up with the present appeal. (3) THE following facts are not in dispute : (a) The decree-holder obtained a decree for sale against the predecessor-in-interest of the appellants for a sum of Rs. 16,425/- with costs and filed Title Execution Case No. 51 of 1985 for recovery of Rs. 27,310/-by sale of the house property of the judgement-debtor being Premises no. 17, Roy Bagan Street, Calcutta-700 006. (b) In the said title execution case, the judgement-debtor filed an application under section 47 of the Code of Civil Procedure thereby challenging the said decree as a nullity. Such application under section 47 gave rise to the Miscellaneous Case No. 779 of 1989. In the said Miscellaneous Case No. 779 of 1989, the judgement-debtor filed an application for stay of the sale which was fixed on 4th August, 1989 and the Executing Court on 3rd August, 1989 was pleased to pass an order of stay of sale subject to deposit in the Executing Court all the decretal dues and the costs. (c) The Executing Court, however, by Order No. 51 dated 4th August, 1989 vacated the earlier order of stay on the ground that the alleged deposit made by the judgment-debtor was not in terms of Order no. 49 dated 3rd August, 1989 and accordingly, the sale had taken place on 4th August, 1989. (d) On 26th August, 1989, the judgement-debtor in the pending execution case, filed an application under Order 21 Rule 89 of the Code of Civil procedure for setting aside the sale and such application gave rise to the Miscellaneous Case No. 864 of 1989. 49 dated 3rd August, 1989 and accordingly, the sale had taken place on 4th August, 1989. (d) On 26th August, 1989, the judgement-debtor in the pending execution case, filed an application under Order 21 Rule 89 of the Code of Civil procedure for setting aside the sale and such application gave rise to the Miscellaneous Case No. 864 of 1989. Although the said application was described as an application under Order 21 Rule 89 of the Code of Civil Procedure, it appears that the judgement-debtor, in the said application, disputed the legality of the sale held on 4th August, 1989 and at the same time, did not deposit "the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of proclamation of sale, have been received by the decree-holder" along with 5 per cent of the purchase-money, as required under Order 21 rule 89 of the Code of Civil Procedure. In the said application, the judgement-debtor merely prayed permission for deposit of 5 per cent of the purchase-money and further amount of Rs. 9,228/- and rs. 813/-being costs of the proceedings with a prayer that the various other amounts deposited in the proceedings under section 47 of the code of Civil Procedure should be adjusted. (4) THE learned Executing Court, by the order impugned herein, dismissed the application under Order 21 Rule 89 of the Code of Civil Procedure on the ground that the judgement-debtor had merely deposited Rs. 14,055. 35p. on 30th August, 1989 after filing of the application under Order 21 Rule 89 of the Code of Civil Procedure and as such, the same was liable to be dismissed. (5) BEING dissatisfied, the substituted judgement-debtors have come up with the present appeal. (6) AFTER hearing Mr. Banerjee, the learned Advocate appearing on behalf of the appellants and Mr. Roychowdhury, the learned Senior Advocate appearing on behalf of the auction-purchasers, we are of the view that the learned Executing Court rightly held that the appellants were not entitled to get the relief in terms of Order 21 Rule 89 of the Code as their predecessor had not deposited the amount mentioned in sub-rule (1) of Rule 89 of Order 21 which is mandatory for maintaining such an application. (7) ALTHOUGH, Mr. (7) ALTHOUGH, Mr. Banerjee appearing on behalf of the appellant tried to convince us that his clients were entitled to have the sale set aside as the sale was made in contravention of the provisions contained in Order 34 of the Code, we are of the opinion that in this appeal under Order 43 Rule 1 (j)of the Code, we are only called upon to decide whether the appellant was entitled to get the benefit of Order 21 Rule 89 of the Code and as such, there is no scope of going into those questions raised by Mr. Banerjee. (8) IT is now settled law that if a judgment-debtor wants to get the benefit of Order 21 Rule 89 of the Code he must unconditionally comply with the requirements thereof and if any other application, under Order 21 Rule 90 of the Code of Civil Procedure for setting aside the sale, is pending, such application should be withdrawn. In the case before us, the original judgement-debtor, in the application under Order 21 Rule 89, disputed the legality of the decree as well as the sale already held which is not permissible under law and at the same time, did not Jeposit the entire amount mentioned in the said rule. By making deposit of only 5% of the sale-price for payment to the auction purchaser without making payment of the entire claim of the decree holder, the right accrued in favour of the auction-purchaser cannot be taken away. We have already pointed out that the provision contained in order 21 Rule 89 does not permit the judgement-debtor to dispute the legality of the decree or the sale in favour of the auction-purchaser and therefore, the application, as it stood, was not maintainable. (9) MR. Banerjee in this connection placed strong reliance upon the following two decisions : (i) Jyotish Chandra Sikdar and Ors. vs. Surendra Nath Das and Anr. , reported in AIR 1939 Cal 153. (ii) Mhadagonda Ramgonda Patil and Ors. vs. Shripal Balwant Rainade and Ors. , reported in AIR 1988 SC 1200 . (10) IN the case of Jyotish Chandra Sikdar (supra), a judgement-debtor, within the time prescribed under law, deposited the entire money as needed under Order 21 Rule 89 of the Code, but no formal application was filed praying for setting aside the sale. vs. Shripal Balwant Rainade and Ors. , reported in AIR 1988 SC 1200 . (10) IN the case of Jyotish Chandra Sikdar (supra), a judgement-debtor, within the time prescribed under law, deposited the entire money as needed under Order 21 Rule 89 of the Code, but no formal application was filed praying for setting aside the sale. The learned Executing Court, however, granted the relief to the judgement-debtor by treating "the purpose of deposit mentioned in the challan" as sufficient compliance of the provisions. On appeal, the learned District Judge set aside the order of the Executing Court on the ground of absence of a formal application. A learned Single Judge of this Court, in Revision, reversed the decision of the learned District Judge on the ground that the requirements of Order 21 Rule 89 of the Code having been complied with by depositing the entire amount of money prescribed under the law, the purpose of deposit indicated in the challan was sufficient to dispense with the filing of a formal application. In the case before us, the judgement-debtor had not even complied with the requirements of Order 21 Rule 89 and therefore, the learned Executing Court rightly refused to grant the relief as prescribed in the said provision. The said decision is, therefore, of no avail to the appellants. (11) IN the case of Mhadagonda Ramgonda Patil and Ors. , (supra), the supreme Court was considering an appeal against the decree of the Bombay high Court affirming the decree of redemption of mortgage passed by the learned Trial Judge under the following circumstances: the mortgagors filed a suit for redemption of mortgages. A preliminary decree for redemption was passed. The mortgagors failed to make payment within the specified period under the preliminary decree, and as such, on an application made by the mortgagee, a final decree for sale was passed in the suit. Although the final decree for sale of the mortgaged property was passed, the mortgagee did not execute the final decree and allowed the same to be time barred. The mortgagee and after him, his heirs and legal representatives, however, continued to be in possession of the mortgaged property. Subsequently, the successors-in interest of the original mortgagors, filed a second suit for redemption of the mortgages. The mortgagee and after him, his heirs and legal representatives, however, continued to be in possession of the mortgaged property. Subsequently, the successors-in interest of the original mortgagors, filed a second suit for redemption of the mortgages. It was claimed by them that in spite of passing of the final decree for sale in the earlier suit, the mortgage still subsisted, and that they were entitled to redeem the same and get possession of the mortgaged property. The defendants contended that the second suit for redemption was not maintainable. The Trial Court overruled the plea of the defendants and decreed the suit, which was affirmed by the High Court. (12) ON appeal by the defendant, the Supreme Court held that the plea that as a final decree was passed in the earlier redemption suit, so there was a merger of the mortgage-debt in the decretal-debt, and as such, the second suit for redemption was barred would not be sustainable. We fail to appreciate how the said decision can be of any help to the client of Mr. Banerjee in this appeal against rejection of an application under Order 21 rule 89 where the only question is whether the judgement-debtor had complied with the formalities of Order 21 Rule 89 of the Code. We have already pointed out that in the application, the judgement-debtor having disputed the legality of the decree and the sale and at the same time, having failed to make deposit in terms of Order 21 Rule 89 of the Code, the same was not maintainable. We, therefore, find that the said decision of the Apex court does not help Mr. Banerjee in any way in this appeal. (13) ON consideration of the entire materials on record, we find that the learned Executing Court rightly refused to grant any relief to the appellants under Order 21 Rule 89 of the Code as their predecessor failed to comply with the mandatory ingredients of the said provision. (14) WE, therefore, find no merit in this appeal and the same is dismissed. We make it clear that in this first miscellaneous appeal preferred against the order impugned, we have not entered into the other questions about the legality of the decree or the sale sought to be raised by Mr. Banerjee because those are beyond the scope of this appeal. We make it clear that in this first miscellaneous appeal preferred against the order impugned, we have not entered into the other questions about the legality of the decree or the sale sought to be raised by Mr. Banerjee because those are beyond the scope of this appeal. The appellants are liberty to withdraw the amount deposited by them earlier as a condition of grant of interim order in their favour pursuant to an order passed by a Division bench. (15) IN the facts and circumstances, there will be, however, no order as to costs. Rudrendra Nath Banerjee, J. : I agree. Appeal dismissed.