Patna High Court
Hanuman Singh vs Baba Baijnath Prasad Singh And Ors. on 22 December, 1936
Equivalent citations: 172IND. CAS.8, AIR 1937 PATNA 537
ORDER Rowland, J.
1. The appellant was the auction-purchaser of a holding put up to sale in execution of a decree for rent of the holding itself. The order objected to is an order setting aside the sale on the application of a transferee from the judgment-debtor who came to the Court on the twenty-ninth day after the sale and deposited five per cent, of the purchase money for payment to the auction-purchaser and in lieu of depositing in Court under Section 174 (1), Bengal Tenancy Act, the amount recoverable under decree with costs for payment to the decree-holder, stated by petition that the payment had been made out of the Court to the landlord. The landlord decree-holder assented to this statement and to the application to set aside the sale. The objection of the petitioner auction-purchaser was over-ruled. The contention on his behalf is that the Court was bound to affirm the sale unless the money was actually deposited in Court. The points for determination are : first, whether it was contrary to law to set aside the sale without the money being deposited and secondly, whether the error amounts to such an illegal or materially irregular exercise of jurisdiction as would call for the interference of this Court tinder Section 115, Civil Procedure Code.
2. It is quite clear that the, procedure followed by the Munsif was not that laid down in the Bengal Tenancy Act. Section 174 (2) provides for setting aside the sale "if such deposit is made within the thirty days" and not otherwise. The language of this section is different from that of Section 170 in which the conditions are laid down under which an order for the sale of a holding is vacated and the holding released from attachment. This is done under Section 170 (2) if either the amount of the decree including costs is paid into Court or the decree-holder makes an application for the release of the holding on the ground that the decree has been satisfied out of Court. There is no reference in Section 174 to any such application by the decree-holder on the ground that the decree has been satisfied out of Court and on a plain, reading of the words of the statute it seems to me that the intention was that the sale must be confirmed unless the money is paid into Court This was laid down in Kabilaso Koer v. Raghu Nath 18 C. 481, by Sir Comer Petheram, C.J., as long ago as 1891 and that has been held to be settled law in Raghunandan Pandey v. Garju Mandal 6 P.L.T. 795 : 91 Ind. Cas. 217 : A.I.R. 1925 Pat. 525 : 4 Pat. 718 : (1925) Pat. 183. The earliest case that has been pointed out to me in which the rule was relaxed in Ram Prasad v. Ram Charan Singh 27 Ind. Cas. 601 : A.I.R. 1916 Cal. 64, in which the decree-holder and auction-purchaser were one and the same person and there had been an agreement between him and the judgment-debtor that the sale should be set aside. Jenkins, C.J., said:
The learned Judge before whom this reasonable application was made seems to have felt that his action was paralysed, because this particular predicament did not fall within the precise words, of the Rule 89 onwards of Order XXI. but I venture to think that where a case of that kind arises, it certainly is open to the Court not to confirm the sale and to treat the sale as being of no effect that being the concurrent wish of the parties and the obvious requirement of the case.
3. In this case and in Shivram Sand v. Manulal Khemka 104 Ind. Cas. 753 : 104 Ind. Cas. 753 : A.I.R. 1928 Pat. 40 similarly decided, the only parties before the Court were the decree-holder who was also the auction purchaser and the judgment-debtor. I should point out that in the other Calcutta case Kabilaso Koer v. Raghu Naih 18 C. 481, as well as Raghunandan Pandey v. Garju Mandal 6 P.L.T. 795 : 91 Ind. Cas. 217 : A.I.R. 1925 Pat. 525 : 4 Pat. 718 : (1925) Pat. 183, the purchaser was a third party. I have been referred to Inderdeo Tiwari v. Ram Ran Bijay Prasad Singh 16 P.L.T. 709 : 161 Ind. Cas. 714 : A.I.R. 1936 Pat. 164 : 2 B.R. 372 : 8 R.P. 481, in which it was held that where the auction-purchaser, the judgment-debtor and the decree-holder all concur in a compromise waiving the requirement of law in Section 169, Bengal Tenancy Act, for deposit by the auction-purchaser of the balance of the purchase money, the Court may give effect to that compromise although the procedure was not strictly in accordance with Section 169.
4. Now what a Court may be justified in doing, when all the parties before it are agreed in what they wish to be done is one thing. Courts have in many such cases thought fit not insist on technicalities but to do what in the words of Jenkins, C.J. was "the concurrent wish of the parties and the obvious requirement of the case." When the Court has a general jurisdiction and the parties to a proceeding have by agreement adopted a procedure different from the ordinary procedure, then if the Court has given effect to such an agreement, one of the parties who has consented to it will not be heard at a later stage to object. This and no more in my opinion is the effect of the decision of the Judicial Committee of the Privy Council in H. P. Pisani v. Attorney-General for Gibralter (1874) 5 P.C. 516 : 30 L.T. 729 : 22 W.R. 900. That was a case in which the Court had permitted an amendment of the plaint in a somewhat irregular manner and had taken the unusual course of determining the rights of the defendants one against another. While their Lordships were quite clear that the party who had consented to this procedure could not turn round afterwards and object to it, they did not by any means express approval at the procedure followed. On the contrary they said:
Their Lordships, in conculsion, cannot but express their regret that, when the title of the Crown failed, the information was not dismissed and the defendants left to establish their rights as against each other in the ordinary way. The irregular procedure introduced by the amendment... must have caused great embarrassment.
5. This decision was applied Sadasiva Pillai v. Ramalinga Pillai 2 I.A. 219 : 15 B.L.R. 383 : 24 W.R. 193 : 3 Sar. 519 (P.C.). In this case the question was of the regularity of certain proceedings which resulted in security bonds to enforce the plaintiff's right to mesne profits in the event of his success in the appeal. Here again their Lordships observed:
The Court here had a general jurisdiction over the subject-matter though the exercise of that jurisdiction by the particular proceeding may have been irregular :
and they followed Pisani's case (1874) 5 P.C. 516 : 30 L.T. 729 : 22 W.R. 900:
In which the parties were held to an agreement that the questions between them should be heard and determined by proceedings quite contrary to the ordinary cursus curiae.
6. This is not to say that whenever two of the parties to a litigation have come to an agreement; the Court is bound at their wish to follow a procedure contrary to that directed by the statute. It may or may not be so done when each and every one of the parties before the Court are agreed, but where there is no such general agreement. I. think that the proper course for the Court to follow is to adhere strictly to what is laid down for its guidance in the statute itself. In Seth Nanhelal v. Umrao Singh 58 I.A. 50 : 130 Ind. Cas. 686 : A.I.R. 1931 P.C. 33 : 27 N.L.R. 95 : 14 N.L.J. 28 : 53 C.L.J. 187 : 35 C.W.N. 381 : 60 M.L.J. 423 : 33 L.W. 449 : (1931) A.L.J. 257 : (1931) M.W.N. 281 : 8 C.W.N. 585 : Ind. Rul. (1931) P.C. 94 (P.C.), their Lordships of the Privy Council considered a case in which the Court below had set aside a sale on the ground that the decree had been discharged since the sale. The Court purported to act under Order XXI, Rule 89, Civil Procedure Code, and. under Order XXI, Rule 2, which provides for certification of an adjustment out of Court, apparently taking the view that an adjustment between the decree-holder and the judgment-debtor nullified the decree taking away the very foundation of the Court's power to execute the decree, viz., the existence of a decree capable of execution. This reasoning their Lordships rejected, pointing out that for certification of an adjustment under Order XXI, Rule 2, the proper stage is:
when the matter lies only between the judgment-debtor and the decree-holder and when no other interests have come into being. When once a sale has been effected, a third party's interest intervenes and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment-debtor can get rid of a sale which has been duly carried out, are those embodied in Rule 89, namely, by depositing in Court the amount for the recovery of which the property was sold, together with 5 per cent. on the purchase as statutory compensation and this remedy can only be pursued within 30 days of the sale.
7. In that case the adjustment propounded had been arrived at more than 30 days after the date of the sale whose confirmation had been delayed owing to some other proceeding; but the language of their Lordships is general, and in my opinion it fully supports a decision of this High Court which goes a little further than that in Raghunandan Pandey v. Garju Mandal 6 P.L.T. 795 : 91 Ind. Cas. 217 : A.I.R. 1925 Pat. 525 : 4 Pat. 718 : (1925) Pat. 183. I refer to Sham Narayan Singh v. Basdeo Prasad Singh 7 P.L.T. 25 : 88 Ind. Cas. 537 : A.I.R. 1925 Pa 702. In this case it was alleged by the judgment debtor but denied by the decree-holder who was also the auction-purchaser that the parties had made a compromise out of Court by which the decree was adjusted and the sale was to be set aside. This application of the judgment-debtor had been rejected by the Subordinate Judge as being not maintainable. He held that the Code of Civil Procedure did not authorize him to entertain any application to set aside the sale by arrangement between the decree-holder and the judgment-debtor and he dismissed the application without entering into the disputed question of fact. His decision was upheld by Mullick and Ross, JJ. as correct. It was said:
The only ground upon which a decree-holder can set aside his own sale is that the judgment-debtor has no saleable interest in the property. There is no provision in the Code for allowing adjustments between the parties after the sale has been held. The sale is a solemn act and the Court is not competent to review it merely at the request of the parties.
8. To sum up, there is no authority in this High Court for permitting a sale to be set aside otherwise than under Section 174 or Rule 89 by consent of some but not all of the parties concerned in the decree, the execution and the sale. There is some authority to the effect that it is permissible for a Court to give effect to a compromise and to allow adjustment outside the scope of Section 171 provided that all the parties who are entitled to be heard in the matter concur, and if that is done, one of those parties will not be heard at a later stage to resile from his agreement and impeach the act of the Court on the ground of its irregularity. But the correct procedure is to abide what the statute has laid down. Where all the parties concerned are not agreed, the contrary view has never been taken in this Court. Two cases of other Courts have been referred to. One is Janki Prasad v. Lekhraj 55 A. 697 : 149 Ind. Cas. 877 : A.I.R. 1933 All. 510 : (1933) A.L.J. 1004 : 6 R.A. 999, which was a case under Order XXI, Rule 89, and turned on words in that Rule. As pointed out:
The rule requires the judgment-debtor to deposit in Court 'for payment to the decree-holder the amount specified in the proclamation of sale...less any amount which since the date of such proclamation of sale, have been received by the decree-holder. The rule entitles the judgment-debtor to deduct the amount which has already been received by the decree-holder after the date of the proclamation.
9. It was held, therefore) that Rule 89, recognizes and permits the decree-holder and the Court to allow for any payments received by the decree-holder even after the date of the sale. In the result it was held that the deposit of five per cent. together with the admission of the decree-holder that he had received the balance of the decretal amount was a compliance with the requirement of Rule 89. This decision is of no avail to the respondent before me because Section 174, contains no words corresponding to those in Rule 89, the effect of which is to authorize the Court to accept an acknowledgment by the decree-holder as a substitute for deposit in Court for the purposes of this rule. The other is Hemanta Kumari Debi v. Rajendra Kisho Nath A.I.R. 1926 Cal. 1236 : 97 Ind. Cas. 306, which is on all fours with the present case. The learned Judges do not cite any authority in support of their view. Even if my personal view were different, which it is not, I should be bound to follow the decisions of this Court in Raghunandan Pandey v. Garju Mandal 6 P.L.T. 795 : 91 Ind. Cas. 217 : A.I.R. 1925 Pat. 525 : 4 Pat. 718 : (1925) Pat. 183, and Sham Narayan Singh v. Basdeo Prasad Singh 7 P.L.T. 25 : 88 Ind. Cas. 537 : A.I.R. 1925 Pa 702. I have, therefore, no doubt that the order of the Munsif is erroneous and passed on a wrong view of law. It was his duty to reject the application and to confirm the sale, unless within the period of limitation, the decretal money was deposited.
10. Another objection was taken. It was said that the opposite party was not competent to make the deposit in face of Section 174 (3) which permits it to be made by any person other than one who ought to have paid a transfer fee, to the landlord and has not paid it. Undoubtedly the landlord can object that he has not received the transfer fee, but if the landlord admits receipt of it, a third party cannot compel the Court to investigate this question of fact. It was so decided in Saukhin Singh v. Jaglal Singh, Civil Revision No. 560 of 1935, decided on January 24, 1936, which may be referred to as illustrating a correct procedure. Here the decree-holder and a transferee of the holding jointly applied to the Court for setting aside the sale on the ground that the decree Lad been satisfied. The application was forthwith rejected on the ground that the sum decreed had not been deposited in Court. Fortunately there were still several days remaining before the expiry of the period of 30 days and the deposit of the statutory amount with live per cent. Compensation for the auction-purchaser was in fact made within time and the sale accordingly set aside. It was held in revision that the procedure followed was correct. In the case before me the application was made before the Munsif on the last day but one and the proper order for him to pass was that the application be rejected and that the parties if they chose, should deposit the amount required by the statute within the period of limitation. I consider this a fit case for the exercise of the revisional jurisdiction of this Court, and I have now to consider the proper order to pass. If the Munsif had rejected the application, the effect would have been to give the applicant still one clear day in which to make the required deposit, and I think he must have that opportunity. If the amount due under the decree is deposited in this Court to-day (the five per cent. compensation for the purchaser having been already deposited) the sale will be set aside; failing that it shall be confirmed. The petitioner shall have his costs of this application: hearing fee two gold mohurs.