Jagan Nath and Others vs Bhagwant Singh and others

Surinder Singh, J.—This revision seeks to impugn the order order passed by the Ist Additional District Judge, Ludhiana dated April 28, 1976. As per this order, the learned Additional District Judge reserved the joinder passed by the Sub-Judge I Class, Ludhiana, releasing the property from the attachment and sale.

The respondents in this revision have all been served but respondent No. 1 alone is represented. None having appeared on behalf of respondents No. 2 and 3, they are proceeded exparte.

The facts in this case are not in dispute as is apparent from the judgments of the Courts below. Some property belonging to Jagan Nath the present petitioner was sold after attachment in execution of a decree. The property was sold by auction on March 3, 1975, for Rs. 4500/- and was purchased by Bhagwant Singh in the auction. On the same date that is March 3, 1975, one of the judgment-debtors, named Des Raj (Petitioner No. 2) in the revision petition, who is also the soft of Jagan Nath petitioner, deposited a sum of Rs. 4523/- on account of the amount of the decree, in Court and again on March 12, 1975, he made a further deposit of Rs. 225/- by way of 5 percent of the sale price. Thereafter Jagan Nath judgment-debtor made an application to the Court that in view of the whole amount of the decree having been deposited including the five per cent of the sale price, the land belonging to him, which had been attached in execution, be released from the attachment. The trial Court, after issuing notice to the parties concerned, considered the matter and released the property from attachment. It directed that five per-cent of the auction amount be paid back to the auction purchaser while the decretal amount of Rs. 4523/- be paid to the decree holder and the execution application be consigned as fully satisfied.

It transpires that Bhagwant Singh, auction-purchaser, filed an appeal against the above order of the executing Court which was heard by the first Additional District Judge, Ludhiana, who, as already noticed, reversed the judgment of the executing Court and confirmed the sate of the property in favour of the auction purchaser Bhagwant Singh. A persual of the judgment of the lower appellate Court indicates that the sole ground on which the appeal was accepted is that the Court took notice of the fact that although the application for releasing the property from attachment was made by Jagan Nath Judgment debtor, the decretal amount and other charges have been deposited by another judgment-debtor Des Raj, who, as already mentioned, is the son of Jagan Nath. The learned Additional District Judge, Ludhiana, relies upon AIR 1955 185 (Nagpur) , in support of his view that the application for setting aside the attachment could have been allowed only if the applicant had himself deposited the decretal amount and not through the agency of the other co-judgment debtors. It appears that the learned Judge ignored the amendment made in Order 21 Rule 89 of the CPC in this behalf. The rule as amended postulates that any person claiming an interest in the property sold at the lime 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 deposit in Court the required amount representing the decree. In the present case, it is not disputed that the deposit was made by Des Raj who was not only a co-judgment-debtor but was also the son of Jagan Nath. The deposit made him can thus be certainly treated as being on behalf of Jagan Nath judgment-debtor. This being so, the learned appellate Court was not justified in ignoring this deposit. The provision of law are to be interpreted in a reasonable manner and if this is done the deposit made by the co-judgment-debtor must serve the purpose of the other judgment-debtors also, more so, when the two are father and son.

The revision petition is accepted and the judgment of the lower appellate Court is set aside and that of the executing Court is restored. There is no order as to costs.