Kandaswami Koundan vs Sanni Krishnama Naidu

Mack, J.—Petitioner who was not a party to the decree filed an application under Order 21, Rule 89, Civil Procedure Code, to set aside a

Court sale in execution. The District Munsif and the District Judge in appeal concurred in finding that the petitioner had no locus standi to file such

an application as he was neither the judgment-debtor nor a person deriving title from him nor any person holding an interest in the property and

dismissed his application.

The facts are briefly these. The judgment-debtor is stated without contradiction by the other side to be an old man of about 80. The Court sale

in execution of the decree against him was held on 14th October, 1947, at which a house belonging to him in Dharapuram was sold for Rs. 1010.

On 27th October, 1947, the judgment-debtor executed a usufructuary mortgage of some other property, the mortgage specifically reciting as part

of the consideration a sum of Rs. 1,500 which the mortgagee had to deposit in the executing Court. What is most important is a specific direction

in this mortgage deed to the petitioner to pay this money into Court and to get this house released from attachment. In accordance with, this

direction, the petitioner filed an application under Order 21, Rule 89, on the 10th November, 1947, making the full deposit required by that

section. The point for consideration is whether his application was maintainable.

It is in the first place urged that the petitioner was an agent of the judgment-debtor and in this capacity made the deposit. Reliance is placed on

Mullapudi Hanumayya Vs. Annadasu China Bapanayya and Others, which held that it was sufficient if the deposit was made through an agent and

the personal attendance of the judgment-debtor when depositing the money is not necessary. Mr. Desikan for the respondent concedes this

position, but urges that the application under Order 21, Rule 89, by the petitioner is not maintainable and that in the circumstances it was only the

judgment-debtor who could have filed it. He contends further that the petitioner can in no sense be considered a recognised agent within the

meaning of Order 3, Rule 2, Civil Procedure Code, as he is not the holder of a power of attorney. These technical positions can be met by counter

technical positions, I. think, to the advantage of the petitioner. The facts of this case are peculiar and not on all fours with those in Krishnama

Naicken and Another Vs. Sivasami Chettiar and Others, , on which Mr. Desikan relies to refute the petitioner''s possible position as a person who

holds an interest in the property. The facts there were really quite different as the person who applied to set aside the sale had purchased some

other property from the judgment-debtor or long prior to the Court sale and under his sale deed he merely had to deposit the price towards the

decree. He made one or two deposits in driblets, then the property was brought to sale and afterwards he sought to come up with an application

under Order 21, Rule 89, Civil Procedure Code, to set aside the sale as one interested in the property. His application was ultimately dismissed

and if I may say so with great respect to the Bench, quite rightly. There were some observations in that decision to the effect that the interest in the

property contemplated by this rule is an interest in the very property the sale of which is sought to be set aside and that indirect interest is not

sufficient. In view of the facts being different here, I am inclined to the view that in view of the specific direction and obligation imposed on

petitioner in this registered mortgage, he cannot be held to be a person who does not have an interest in the property brought to sale. If he failed to

make the deposit and get the attachment on it set aside, his usufructuary mortgage, would have failed for partial lack of consideration and from this

point of view he was interested in getting the sale of this property set aside and its attachment raised.

From another standpoint, there can also be no doubt that the petitioner acted as the agent of the judgment-debtor. A power of attorney is

widely defined in Section 2(21) of the Stamp Act as including an instrument empowering a specified person to act for and in the name of the

person executing it. In this registered mortgage, there is a direction by the judgment-debtor to this petitioner to deposit this amount of Rs. 1,500 in

Court to get this house released from attachment. A reasonable construction of that clause in this mortgage is that it gave the petitioner sufficient

legal power to make the deposit and to file this application under Order 21, Rule 89, Civil Procedure Code, on which alone in law the property

could be released from, attachment. It is contended that the petitioner could not possibly have been empowered by this mortgage deed to file for

instance a suit on behalf of the judgment-debtor. I am in complete agreement, but the view I have no hesitation in taking on the recital of Ex. A is

that it specifically authorised the petitioner both to make the deposit and to take the necessary steps to have the attachment raised. He was not

authorised to appear for the judgment-debtor in any other Court proceeding. This is, I think, the only reasonable view of the action which

petitioner took to implement the contract he had made under Ex. A. No doubt, it would have been better and more regular if the judgment-debtor

had associated himself with this application and also this revision petition. He was, however, an old man of over 80 and had done his best within

the limits of his legal knowledge to mortgage some of his other property and arrange to the best of his ability for the deposit of this money in Court

in time through the agency of the petitioner. It would in my view be a travesty of law and justice if sheer technicality should prevail and the Court

sale of this house not set aside in the circumstances and the auction-purchaser who incidentally happens to be the decree-holder himself should

make his bargain good with the seal of Court approval on the ground of technicality alone.

The petition is allowed and the Court sale is set aside and the application under Order 21, Rule 89, Civil Procedure Code, will be allowed with

costs throughouts On the question of costs, Mr. Desikan contends that no equitable consideration. arise under Order 21, Rule 89, in applications

which make a concession to the judgment-debtor before confirmation of a Court sale. It is settled law that Order 21, Rule 89, must be strictly

complied with and that no deficiency, for instance, in the quantum of the deposit will be condoned under any circumstances. It is, as observed in

M. Karunakara Menon and Another Vs. M. Krishna Menon and Others, , in the nature of an indulgence to judgment-debtors, and a jugement-

debtor who wishes to take advantage of its provisions must strictly comply with the same. But ""strict enforcement"" must be interpreted in

accordance with rural conditions, the knowledge of law prevailing in rural areas unconnected with Courts by any controlled channel of legal service

and other factors, unless Order 21, Rule 89, is to degenerate into mere ruthless machinery to which no equitable principle can, under any

circumstances, be applied. I think in this case the decree-holder being himself the purchaser and the full deposit having been made by this agent of

the judgment-debtor within the thirty days, the decree-holder should have contented himself with withdrawing the whole of the amount instead of

pressing on grounds of mere technicality for the sale to himself being confirmed. It would be inequitable in the circumstances not to direct the

decree-holder to pay the judgment-debtor his costs throughout.