Patna High Court
Raghu Ram Pandey And Anr. vs Deokali Pande And Anr. on 14 July, 1927
Equivalent citations: 109IND. CAS.461, AIR 1928 PATNA 193(2)
JUDGMENT Kulwant Sahay, J.
1. Defendants Nos. 1 and 2 obtained a money-decree against the defendant No. 3 on the 16th January, 1917. The decree was obtained on the basis of a bond executed by Musammat Jaimani, the mother of defendant No. 3, and there was a direction in " the decree to the effect that the decretal amount will be realised out of the assets inherited by defendant No. 3 from her mother. Defendant No. 3 conveyed all the properties which she had inherited from her mother as well as from her father to the plaintiffs under a deed of gift dated the 3rd April, 1917, and the plaintiffs objected to the sale of the property in execution of the decree on the ground that the property attached was not the property forming the assets of the mother of defendant No. 3, This objection of the plaintiffs was disallowed, and the property was sold on the 2nd May, 1921. The plaintiffs thereupon deposited the decretal amount and the compensation under the provisions of Order XXI, Rule 89 of the Code of Civil Procedure and soon thereafter instituted the present suit for a declaration that the property attached and sold belonged to the plaintiffs and that defendant No. 3 or her mother had no right or interest therein. On a deter mination of the plaintiffs' title to the property sold a permanent injunction was asked for restraining the defendants Nos. 1 and 2 from taking out execution by attachment and sale of the properties forming the subject-matter of the suit. There was a further prayer for a temporary injunction restraining the defendants Nos. 1 and 2 from withdrawing the deposit made by the plaintiffs under Order XXI, Rule 89 of the Code. It appears that in the meantime the money had been withdrawn by the defendants Nos. 1 and 2 and the plaintiffs thereupon asked for an amendment of the plaint by the insertion of a prayer for a refund of the money withdrawn by the defendants Nos. 1 and 2 and the amendment was accordingly made. The defence of the defendants Nos. 1 and 2 was that the suit was not maintainable and that the property did not belong to the plaintiffs, but was the property forming the assets of the mother of defendant No. 3. Both the Courts below have held that the property belonged to the plaintiffs. The learned Munsif found that the suit was maintainable. The learned Subordinate Judge on appeal did not deal with this question in his judgment.
2. The point taken on behalf of the defend ants Nos. 1 and 2 in this second appeal is that the plaintiffs having made the deposit under Order XXI, Rule 89 of the Code of Civil Procedure it was not open to them to challenge the validity of the sale and to ask for a refund of the deposit made by him. The decision of the point depends en the true meaning and scope of Order XXI, Rule 89 of the Code of Civil Procedure. A person who objects to the attachment and sale of a property on the ground that the property did not belong to the judgment-debtor, has his remedy by an application under Order XXI, Rule 53 of the Code. He can also stop the sale by making a deposit under protest. If the property sought to be Sold does not really belong to the judgment-debtor, then the sale of the property in execution of a money-decree will not affect the rightful owner of the property and he can ignore the sale and resist the auction-purchaser in his attempt to take possession of the property after the sale. A person who is the owner of the property is not affected by a sale of the right, title and interest of the judgment-debtor to whom the property does not belong. In the present case the plaintiffs did object to the sale under Order XXI, Rule 58 and their claim was disallowed. They allowed the sale to take place and then made a deposit under Order XXI, Rule 89.Now the object of Order XXI, Rule 89 is to enable the judgment-debtors or persons interested in the property sold to have the sale set aside on paying up the decree and compensation within thirty days of the sale. It gives a period of grace to the judgment-debtor or to the person interested in the property to have the sale set aside on making the payment provided for in the rule. When the payment is made under r. 89, the person making the payment must accept the validity of the sale. He cannot make a payment under Order XXI, Rule 89 and at the same time challenge the validity of the sale. A payment under Rule 89 must be an unconditional payment with the object of the money being paid to the decree-holder. Once a payment is made under Order XXI, Rule 89 it is clear that the person making the payment cannot be heard to say that the sale was not a valid sale and that the money deposited should not be paid to the decree-holder. The judgment-debtor or the person interested is under no compulsion to make the deposit under Order XXI, Rule 89. Such a deposit is a voluntary deposit and the person making the deposit cannot, in my opinion, maintain a suit for a refund of the money deposited by him.
3. In Narayan Vasudevacharya Katti v. Amgauda Malagauda Patil 62 Ind. Cas. 104; 45 B. 1094; 23 Bom. L. R. 455 it was held that under the terms of Order XXI, Rule 89 the amount deposited must be taken to have been deposited for payment to the decree-holder voluntarily and unconditionally and, therefore, no suit would lie for its recovery. There also an objection was taken to the sale. The objection was disallowed and the property was sold and the plaintiff made a deposit after the sale under Order XXI, Rule 89 and thereafter instituted a suit for a refund of the money deposited by him on the ground that the deposit had been made by him involuntarily.
4. The learned Advocate for the respondents relies on a passage in the judgment of the learned Chief Justice at page 1100 of the report where his Lordship observes as follows:
But assuming that the property itself was sold 1here may be a difficulty in distinguishing between a payment made under protest to get rid of an attachment and a payment made under pretest to get a sale after attachment set aside. But we do not even know whether the payment was made under protest,"and reference is made to the statements in prayer No. 5 of the relief portion in the plaint where it is stated that the deposit was made by the plaintiff under protest. At page 1102* of the report, however, his Lordship clearly says that once property had been sold, the sale could not be set aside by a payment into Court under protest.
5. The observation of the learned Chief Justice of the Bombay High Court, quoted above, follows another sentence in which his Lordship had observed that ordinarily what the Court would have sold was the right, title and interest of the judgment-debtor, if any, in the property and not the property itself and if the plaintiff, to suit his own convenience, got rid of the sale of the judgment-debtor's right, title and interest in the property by paying the decretal amount into Court, it is quite clear that he could not recover the amount as having been involuntarily paid; and the learned Advocate for the respondents refers to certain statements in the plaint to the effect that in the present case the property itself was sold. It is difficult to understand how the property itself could be sold in execution of a money-decree. At such a sale only the right, title and interest of the judgment-debtor can be sold. Whether it was specifically stated in the sale proclamation that what was sold was the right, title and interest of the judgment-debtor or not, the effect of the sale of a property in execution of a money-decree always is to pass the right, title and interest of the judgment-debtor and nothing more.
6. In Kunja Behari Singha v. Bhupendra Kumar Dutt 12 C. W. N. 151 it was held that when a property belonging to A was sold in execution of a decree against B and A had the sale set aside by making a deposit under s. 310-A of the Civil Procedure Code of 1882, A had no right to sue the decree-holder for recovery of the amount of the deposit money paid to him and the reasons assigned by Woodruff, J., for the decision were that the remedy of the person who was the owner of the property was not under Section 310-A, for he was not affected by the execution proceedings and that the deposit had not been made by him for the purpose of staying the execution.
7. I am, therefore of opinion that the present suit was not maintainable having regard to the provisions of Order XXI, Rule 89 of the Code of Civil Procedure The appeal must, therefore, be allowed and the decree of the learned Subordinate Judge must be set aside and the salt dismissed with costs throughout.
James, J.
8. I agree.