Patna High Court
Pundit Ramshivendra Narayan Ojha And ... vs Awadh Bihary Saran And Anr. on 27 May, 1922
Equivalent citations: 68IND. CAS.629, AIR 1923 PATNA 159
JUDGMENT Adami, J.
1. The opposite party, having obtained two decrees against the petitioners, took out execution on the 9th December 1921, and at the sales in execution of the two decrees, bought a house belonging to the petitioner for Rs. 200 in each ease, and on the 10th of December deposited the earnest money. On the 3rd of January 1922 the petitioner, judgment-debtor, filed two applications which differ in a certain degree and whish are as follows. In the ease which is covered by Civil Revision No. 27 before this Court the petition runs as follows:
The petitioners' property has been sold at auction, therefore, the petitioners have brought the whole decretal money with costs and damages into Court. A chalan may be prepared in office and granted to the petitioners that they may deposit the money into the Treasury. Be it known that the petitioners field a petition for setting off this decree whish was disallowed. An appeal is being filed in the Court of the District Judge. Let this money be not given to the decree holder until the disposal of this appeal,"
2. The other petition was similar except that after the words "so that they may deposit the money into the Treasury," the words "and the sale may be set aside" were added. The Court on these petitions ordered that the challans should be granted and that the prayer as to the withdrawal of the money by the decree holder would be beard later on. On the 6th of January the opposite panty deposited the whole of the purchase money and on the name date the petitioner put in his challan for the whole of the decretal amount in respect of each decree end the Court passed an order that the decretal amount should ha deposited and that the petition with regard to the withholding of the money should be put up in the presence of the Pleaders On the 7th it was directed that the question should be heard in the presence of the Pleaders but no order was parsed until the 10th of January 1922. On that date the learned Subordinate Judge remarked that it appeared from the petition of the judgment debtor that he had deposited the decretal amount and prayed for setting aside the sale. This remark was made in both the cases. He then proceeded to say that, if the prayer in the petition had been merely for setting aside the tale, there 'would have been no difficulty in granting it: but in the second paragraph of the petition the judgment-debtor had asked for the money to be withheld by the Court until the disposal of the appeal which he had lodged. The learned Subordinate Judge held that this prayer made the deposit a conditional one and, although on that date the Vakil for the judgment-debtor had asked to disassociate the prayer for withholding the money from the prayer for setting aside the sale after depositing the money made in the same petition, the petition must be read as a whole and one prayer must depend upon the other and Could rot be divided. He was, therefore, of opinion that the deposit made by the judgment-debtor could cot be held to be valid so as to set aside the sale because it was not unconditional. He then confirmed the sale and refused the petition of the present petitioners.
3. This finding was upheld by the District Judge en appeal. He relied on the case of Shakoti v. Jotindra Mohan Tagore 1 C. W. N. 132. It is clear, I think, that the learned District Judge had not his attention called to the case of Dulhin Mothura Koer v. Bansidhar Singh (2). That is a cafe which is exactly on all fours with the present one, and I think I might rely on the following passage from that case;
It appears, however, that the deposit was accepted by the Court without any question and as soon as objection was taken by the decree holder, the petitioner withdrew the condition, so that the money became available for payment to the decree-bolder before he had made any attempt to withdraw the money from Court. Under such circumstances, we are not prepared to hold that the deposit was invalid and not sufficient for reversal of the sale. The position might have been different, if, upon objection taken by the decree holder, the petitioner had persisted in her effort to annex a condition to the deposit. The decree-holder was not prejudiced in any manner by the insertion of the prayer in the application of the petitioner that the money should be retained in Court, and he was substantially in the name position in the end as if such prayer had never been made. We must consequently hold that there was substantially a valid deposit within the time limited by law, sufficient for reversal of the sale.
4. Now, in the present case the deposit was made within the time allowed by law, and as soon as the decree holder put in an objection, the Vakil for the present petitioner expressed his readiness and with to disassociate, as the Subordinate Judge said, the prayer for setting aside the sale from the prayer for the withholding of the money pending the dispposal of the appeal.
5. The learned Government Pleader on behalf of the opposite party distinguished this present case from that in Dulhin Mothura Koer v. Bansidhar Singh 10 Ind. Cas. 880 : 16 C. W. N. 904 : 15 C. L. J. in that in the latter case the Vakil for the judgment-debtor stated his wish to altogether withdraw the prayer for the retention of the money, while in the present case he does not withdraw the prayer but wishes to make it a separate prayer. I do not think that this distinction can really affect the case. What was meant was that the petitioner wished his prayer for setting aside the sale on receipt of the deposit to be considered absolutely separately and as a separate prayer. It would have been quite open to him to have pat in a petition for setting aside the sale on receipt of the deposit and after he had been granted the application, to have put in a prayer that the money deposited should be retained. As I have said the payment was made within time, and though on the 10th when the application was heard, the thirty days had expired, it was no fault of the petitioner that the delay in hearing the application deprived the petitioner from depositing the money with an application merely praying for setting aside the sale. Had the application been heard at once and decided, it would have been open to him to put in a fresh application, It is thus through no fault of his own that he was deprived of the chance of saving his property.
6. It is next argued on behalf of the opposite party that in one of the petitions there was no specific prayer to set aside the sale; it merely asked that the money should be received in deposit. Now it is quite clear that the learned Subordinate Judge took this as a prayer for setting aside the sale; and in fast it was quite certain that that was the purpose of the deposit. Two eases have been relied on in support of this objection, namely, the case of Raosi v. Bansilal Narayan Marwari 53 Ind Cas. 135 : 43 B. 735 : 21 Bom. L. Rule 835. and the case of Rayapati Venkatasubba Rao v. Kalapatapu Narayana Rao 66 Ind. Cas. 44 : (1922) M. W. N. 171 : 15 L. W. 450. Those two eases, however, must be distinguished, because there no application was put into the Court at all. The judgment debtor merely went to the Nazir of the Court and deposited the decretal amount and the Court without any knowledge of his deposit naturally confirmed the sale; and in the former of the two cases it was not until three years afterwards that objection was made that as the deposit had been made the sale should, therefore, be set aside. I do not think that the decisions in those two eases can affect the present case.
7. The nest objection is that no question of jurisdiction arises and, therefore, this Court should not interfere, bat with this I cannote agree. If the deposit was a good deposit, the Subordinate Judge had absolutely no jurisdiction to refuse to set aside the sale; and I find that the deposit was a good deposit as soon as the Vakil expressed his willingness that the prayer for setting aside the Rule after depositing the decretal money should be taken as a substantive prayer without any condition attached to it. In my opinion, therefore, the decision of the lower Courts should be set aside and the sale should be held to be invalid and set aside. Hearing fee three gold mohurs in both eases.