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Judgment
Maithili Sharan, J.—This order will dispose of both the Civil Revision Petitions-3372 of 1990 and 1123 of 1991 - the earlier petition filed by the Judgment-Debtor, H.C. Narasimhaiah and latter one filed by the Decree-holder Sri T.G. Vasantha Gupta, both being aggrieved by the order dated 7-11-1990 passed by the Subordinate Judge, Adoni, in I.A. No. 239 of 1990 in E.P. No. 88 of 1978 in O.S. No. 14 of 1974.
The brief facts leading to these two revision petitions may be summarised thus: The petitioner in C.R.P. No. 1123 of 1991 Sri T.G. Vasantha Gupta filed O.S. 14 of 1974, on the basis of two simple mortgage deeds dated 22-9-1958 for Rs. 95,000/-, against the petitioner H.C. Narasimhaiah in CRP No. 3372 of 1990 and three others in the Court of Subordinate Judge, Adoni. A preliminary decree was passed in his favour on 16-8-1977 and final decree was passed on 26-8-78. Thereafter/he filed E.P. No. 88 of 1978 for effecting sale of both the properties involved in the two simple mortgages referred to above. The Decree-holder, petitioner in CRP No. 1123 of 1991, participated in the auction sale with the permission of the Court; auction was effected on 12-12-1979 and he was the highest bidder for Rs. 2,51,000/-. He claimed set off of this amount i.e., Rs. 2,51,000/- from the decretal amount of Rs. 4,22434-99 ps. The Judgment-Debtor - petitioner in CRP No. 3372 of 1990 had started depositing the decretal amount from 24-2-1982 and he had been frequently depositing the money in the Court; the balance money of Rs. 3,50,000/- was deposited in the Court on 27-1-1986. Then, the Judgment-Debtor, petitioner in CRP No. 3372 of 1990 applied for getting the sale set aside, as it was not confirmed by then; he had deposited the complete decretal amount on 27-1-1986. The decree-holder objected to it, but the sale was set aside by the Court on 5-8-86. Aggrieved by this order, the Decree-holder filed C.R.P. No. 2860 of 1986 in this Court, but that petition was dismissed on 15-6-1990 as it was withdrawn. Thus, after the dismissal of the said petition, the order dated 5-8-1986 setting aside the order of sale passed by the lower Court was restored. Then, the decree-holder on 12-7-1990 filed a cheque petition in LA. No. 239 of 1990 for withdrawal of the amount deposited by the petitioner-Judgment-debtor in CRP No. 3372 of 1990; the judgment debtor filed objections in it to the effect that the decree-holder was not entitled for a solatium at 5 per cent over the purchase amount of Rs. 2,51,000/- and he i.e., decree-holder was also not entitled to receive the amount of interest accrued as a consequence of enhanced rate of interest for the portion of the decretal amount deposited by the lower Court in Fixed Deposits with the Vysya Bank. The lower Court rejected both the contentions of the judgment debtor - petitioner in CRP No. 3372 of 1990 by the impugned order dated 7-11-1990. It also held that the decree holder was entitled to a total amount of Rs. 4,68,500-53 ps. only. The Judgment Debtor and the Decree-holder, both found themselves aggrieved by the aforesaid impugned order, have filed the present revision petition Nos. 3372 of 1990 and 1123 of 1991 respectively.
I have heard the learned Counsel for the petitioner in CRP No. 3372 of 1990 and have carefully gone through the record of the case. None appears for the respondent in CRP No. 3372 of 1990 and the petitioner in CRP No. 1123 of 1991.
The first contention of the learned Counsel for the petitioner-Judgment Debtor in CRP No. 3372 of 1990 is that the lower Court was not justified in holding that the Judgment Debtor was bound to deposit the amount of 5 per cent solatium in the Court in view of the provisions of Order XXI, Rule 89 of the Civil Procedure Code, (hereinafter referred to as ''the Code''). According to the learned counsel for the petitioner, Order XXXIV of the Code dealing with the suits relating to mortgages of immovable property, specifically engrafts Rule 5 in this regard, according to which, five per cent of the amount of the purchase money is required to be deposited in the Court only if the purchase money had been paid into the Court by the purchaser. For proper appreciation of the two provisions of the Code, referred to by the learned Counsel, it would be worthwhile to produce them as under:
"Order XXI, Rule 89:
Application to set aside sale on deposit:
89(1): Where immovable property has been sold in execution of a decree any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court-
(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and
(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.
(2) Where a person applies under Rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.
(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale."
"Order XXXIV, Rule 5:
(1) Where, on or before the day fixed or at any time before the confirmation of sale made in pursuance of a final decree passed under Sub-rule (3) of this Rule, the defendant makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree,
and, if necessary,-
(b) ordering him to transfer the mortgaged property as directed in the said decree,
(c) ordering him to put the defendant in possession of the property.
(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under Sub-rule (3) of this Rule, the Court shall not pass an order under Sub-rule (1) of this rule, unless the defendant, in (1), deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase-money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall been entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent thereof.
(3) Where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in Sub-rule (1) of Rule 4."
Order XXXIV, Rule 5(2) of the Code specifically provides for the purchase-money to be paid into the Court and does not refer to any notional payment of the entire purchase money, whether paid into the Court or not. The provisions of Order XXI, Rule 89 of the Code are general in nature, while the provisions of Order XXXIV, Rule 5 of the Code deal specifically with the mortgage suits. Thus, I am of the view that the former provisions cannot be pressed into service to control the latter ones. Thus, the Judgment Debtor is not obliged to deposit a sum equal to five per cent of the purchase money as provided in Order XXI, Rule 89 of the Code unless the purchase money is actually paid by the auction purchaser into Court. True, the judgment-debtor, under the provisions of Order XXI, Rule 89 of the Code is required to pay to the purchaser a sum equal to five percent of the purchase money when he applies for getting the sale set aside, but in view of the specific provisions engrafted in regard to mortgage suits in Order XXXIV, Rule 5(2) of the Code, he is not obliged to deposit the said amount, known as solatium, unless and until the purchase-money is actually paid by the auction-purchaser into Court.
Thus, taking the above legal position in the instant case, it is true that the judgment debtor-petitioner in CRP No. 3372 of 1990 did not pay the solatium of five percent of the purchase money, but, it is also true that the decree-holder-auction-purchaser-petitioner in CRP No. 1123 of 1991, had also not paid the purchase money Rs. 2,51,000/- into Court, as he had although been seeking a set off of this amount from the decretal amount of Rs. 4,22,434-99ps, and since the purchase-money was not actually paid into the Court by the decree-holder - auction-purchaser, hence the judgment-debtor was not obliged to deposit the required solatium into the Court. Consequently, I find substance in the argument of the learned counsel for the petitioner in CRP No. 3372 of 1990 in regard to his first contention.
The second contention of the learned counsel for the petitioner in CRP No. 3372 of 1990 is that the interest accrued to the amount of Rs. 3,50,000/-deposited in Fixed Deposit by the lower Court with the Vysya Bank was higher than the six per cent rate of interest provided for in the decree passed by the Court, and hence the excess of interest would ensure for the benefit of the judgment debtor and it should not be given to the decree-holder. I am afraid, this contention is neither justified nor based on equity, obviously because the judgment-debtor had already parted with the said amount as he had deposited it with the lower Court and hence he had nothing to do with it; no ownership over that amount was with the judgment debtor, he had no controlling power over it. The said money was deposited for the benefit of the Decree-holder who could withdraw it whenever he liked. It is true that the latter had filed a revision petition in this Court which was later withdrawn, but that would not go to make any difference because the Judgment-debtor-petitioner in CRP No. 3372 of 1990 had no ownership over that amount in any way; it was part of the decretal amount and he had deposited it into Court, meaning thereby that he had parted with it. So, I am of the view that he could not be held entitled for any amount of interest accrued to that money. Thus, the second contention raised by the learned counsel for the petitioner in CRP No. 3372 of 1990 cannot be justified.
As already observed above, the learned counsel for the respondent in CRP No. 3372 of 1990 and the petitioner in CRP No. 1123 of 1991 did not appear in these two petitions, hence the latter petition would have to be dismissed.
In the result, therefore, CRP No. 3372 of 1990 is partly allowed as observed above, while CRP No. 1123 of 1991 is dismissed. No costs.