Indian Kanoon - Search engine for Indian Law

4. An execution application had been presented by the decree holders against Krishna Kumar, Murli Manohar and Shrimati Javitri but it had been shelved because of the pendency of the proceedings before the Special Judge. After the apportionment of the liability by the learned Special Judge the aforesaid execution application was revived. A certain house was attached and proclaimed for sale. The sale was to take place on 12-4-1945. It was, however, adjourned on 15-7-1945. Meanwhile two other creditors put in applications for rateable distribution. The claim of one-of them to seek rateable distribution was rejected by the execution Court, but the right of the other creditor, namely, firm Earn Eatan Shyam Manohar was upheld. An intimation was sent to the amin and a note was made on the back of the sale warrant to the effect that the amount of the sale proceeds should be recovered in cash because the claim of firm Ram Ratan Shyam Manohar for rateable distribution had been entertained by the Court. It may, however, be pointed out that this endorsement on the sale certificate does not indicate what was the exact amount due to firm Earn Eatan Shyam Manohar.

8. The trial Court held that the appellants were bound to pay the entire amount, namely, the amount due to the decree-holders as well as to the claimants for rateable distribution and since they have not tendered that amount the sale was rightly held. The appellants preferred an appeal. The learned District Judge was of the opinion that it was not necessary to deposit the amount due to the claimants for rateable distribution but, in his view, the amount deposited by them in the first Court was insufficient even to satisfy the decree-holders' decree. The learned Judge pointed out that the sale having been adjourned at the appellants' request for a period of 13 days, interest for those 13 days had also accrued and since this amount had not been tendered by the appellants on the date of the sale, the amount so tendered by them was insufficient to discharge the decree in full. Further he was of the opinion that the costs incurred in respect of the two applications which had been presented by the decree-holders after the issue of the sale proclamation should also have been tendered by the appellants and since that was not done, the amount tendered was insufficient on that score also. On these findings, he dismissed the appeal with costs.

16. This means that the preliminary objection prevails and the appeal should be dismissed.

17. As the learned counsel on either side has argued the case on merits also, it seems desirable to discuss briefly that aspect of the case too.

18. Order 21, Rule 69 (3), Civil P. C., says that :

"Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale."

Learned counsel for the appellants interprets the expression 'debt and costs' as meaning amount specified in the sale proclamation. I am not prepared to accept this contention. In my opinion, the phrase 'debt and costs' means the debt and costs recoverable in the execution proceedings. In other words, this phrase includes the amount due to a claimant for rateable distribution whose claim has been accepted by the Court. Had it been the intention of the Legislature to stay the sale on a mere tender of the amount due under the sale proclamation, the Legislature would have adopted language similar to that contained in Order 21, Rule 89. There it is stated that the sale shall be set aside on payment of the amount specified in the proclamation in addition to the amount of solatium. Since the Legislature did not use such language, it is obvious that it was not the intention of the Legislature that the tender of the amount mentioned in the sale proclamation should suffice. 19. Another reason why this could not have been the intention of the Legislature is that there would be no sense in staying the sale in such circumstances. The amount tendered would become divisible between the decree-holder and the claimant for rateable distribution. The claims of both of them will remain unsatisfied in part. The result will be that the sale will have to take place afresh. Thus it becomes meaningless to stay the sale.

20. It may also be pointed out that under Order 21, Rule 55, as substituted by the Allahabad High Court the property could not be released from attachment on mere deposit of the amount stated in the sale proclamation without the deposit of the amount due for rateable distribution.

21. I am, therefore, of opinion that the Court was perfectly right in refusing to stay the sale unless the amount for rateable distribution was also tendered.

22. One of the reasons recorded by the learned District Judge for holding that the amount tendered was inadequate is also correct. The sale proclamation contained only the amount of principal and the interest due till the date fixed for sale. Since the appellants had themselves sought the adjournment of sale, they knew or should have known that they would be liable for payment of the interest for thirteen days more. It was their duty to pay up that amount also and, if they failed to do so, the amount tendered by them was certainly insufficient. On this ground also the order of the lower appellate Court should be upheld.