Balwant Rai and anr. vs Improvement Trust, Jind and anr.

M.S. Liberhan, J. (Oral)

This is one of the unfortunate cases in which statutory bodies recklessly ignored the interest of the institution. The land of the decreeholder was taken and compensation amounting to Rs. 86,000/ was awarded to the decreeholder. However, the Improvement Trust did not pay the compensation. The decreeholder took out the execution. Still the Trust was not moved. Keeping in view the attitude of the judgmentdebtorImprovement Trust towards the payment of compensation to the decreeholder, the property of the Improvement Trust was put to auction on 591987 in terms of Order 21 rule 92(2) of the Code of Civil Procedure. It is only when the plots have been auctioned that the Improvement Trust''s Office moved. The plots were auctioned on 591987 for Rs. 86,000/. The petitionerauction purchaser deposited the amount. It is at this stage that the judgmentdebtorImprovement Trust on 26.9.1987 made an application for deposit of the decretal amount amounting to Rs. 84,868.15 as calculated by the Accountant of the Improvement Trust. Notice of the application for deposit was issued for 3.10,1987, on which date the Court allowed the deficient amount to be deposited upto 20th of October, 1987.

The auction purchaser on 6101987 moved an application for confirmation of sale, inter laia, contending that the amount has been deposited in terms of Order 21 rule 89 inasmuch as the amount deposited is deficient by 5% of the auction money as well as the expenses of auction and consequently, the executing Court is bound to confirm the sale. The executing Court found that the deposit was deficient and confirmed the sale.

However, the lower appellate Court accepted the appeal and found that in view of the amended provisions of Order 21 rule 92(2) of the Code of Civil Procedure (Amended vide Code of Civil Procedure (Amendment) Act, 1976), a power has been conferred on the Court to extend the period for deposit in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor. It is not disputed that the judgment debtor is a corporate body and the amount has been deposited as calculated by the Accountant of the said department. Nothing has been pointed out to show that the mistake in calculation was not bona fide. There is again no dispute that amount due on account of expenses regarding proclamation for sale etc. was still to be assessed and hence the same has not been deposited as yet though there is no dispute that it is the judgmentdebtor''s liability. The lower appellate Court set aside the auction.

The learned counsel for the revisionpetitioner contends that the executing Court never extended the period nor there is any error on the part of the Court which is being rectified. I find no force in the contention raised by the learned counsel for the petitioner inasmuch as the bare reading of Order 21 rule 92 subrule (2) of the Code of Civil Procedure would make it obvious that time can be extended not only on account of the error on the part of the Court but it can also be extended if an error in calculation has occurred due to a bona fide fault of the judgmentdebtor. I do not find any reason to infer mala fide in view of the fact that the amount of Rs. 84,000/ was deposited while the amount withheld was a paltry sum of Rs. 4,000/. Apart from this, no illegality or irregularity has been pointed out. Substantial justice has been done. If the impugned order is allowed to stand, in my opinion, it is not going to result in any irreparable injury to the petitionerauction purchaser, who will admittedly get 5% over and above the auction money which has already been deposited and as such would be suitably compensated. Accordingly no interference is called for in this revision petition under section 115 of the Code of Civil Procedure. However keeping in view the callous conduct of the Improvement Trust in not making full payment to the decreeholder in time and burdening the executing Court to undergo the entire procedure of auction in executing the decree, I award costs of Rs. 3,000/ which shall be recovered from the person who is found responsible for the lapse.