1. In 1935 the third respondent in this appeal obtained a decree for Rs. 3,575 against the first and second respondents in the Court of the District Munsif of Villupuram. In execution of the decree the third respondent attached and brought to sale fourteen items of immovable properties belonging to the judgment-debtors. One item of property was purchased at the Court auction by the appellant for the sum of Rs. 264. The total amount realised for the fourteen properties was Rs. 2,217. The sale took place on the 2nd December, 1935. On the 2nd January, 1936, the judgment-debtors assigned to the decree-holder a mortgage which had been executed in their favour. The assignment was in part satisfaction of the amount due under the decree. It is admitted that the value of the mortgage assigned was Rs. 2,207 leaving a balance due under the decree of Rs. 10. The Court closed for the Christmas vacation some days before the 25th December, and did not reopen until the 3rd January, 1936. On that date the judgment-debtor paid into Court Rs. 10, the difference between the amount stated in the sale proclamation and the value of the mortgage assigned to the decree-holder. They also paid into Court Rs. 110-12-0, being five per cent, of the purchase consideration and Rs. 137-2-0 the amount required for poundage These payments into Court were accompanied by an application for an order setting aside the sale under the provisions of Order 21, Rule 89, of the Code of Civil Procedure. It was contended by the appellant that this application did not lie. In the first place it was said that the full amount ought to have been deposited in Court within thirty days of the sale and the non-fulfilment of this condition vitiated the application. In the second place it was said that in order to comply with the provisions of Order 21, Rule 89, the payment by the judgment-debtors to the decree-holder must be in cash, and therefore the assignment of the mortgage did not amount to a payment to the decree-holder within the meaning of the rule. The District Munsif decided against the appellant and on appeal his decision was upheld by the District Judge of South Arcot. The present appeal is from the decree of the District Judge.
2. Order 21, Rule 89 of the Code of Civil Procedure permits a judgment-debtor to apply to the Court to have a sale of immovable property in execution set aside provided certain conditions are fulfilled. He must deposit in Court for payment to the purchaser a sum equal to five per cent, of the purchase money and in addition must deposit 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. Rule 92 requires these deposits to be made within thirty days from the date of sale. If the deposits are made within the required period the Court is bound to set aside the sale. Under the provisions of Article 166 of the Limitation Act the application for setting aside must be filed within thirty days of the sale. Section 10 of the General Clauses Act states that where, by any Central Act or Regulation made after the commencement of the Act, an act or proceeding is directed or allowed to be done or taken in a Court for office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. The deposit contemplated by Order 21, Rule 89 could not in the present case be made within thirty days of the date of the sale because the Court was closed, but it was made on the reopening day and was in time by virtue of this provision of the General Clauses Act.
3. The second question calls for more consideration, but apart from an obiter dictum in an Allahabad decision all the reported cases dealing with this question are against the appellant. As I have indicated, he would have it that the judgment-debtor cannot make payment to the decree-holder within the meaning of Clause (b) of Rule 89 unless he tenders cash. In other words, the delivery by the judgment-debtor to the decree-holder of moneys worth would not relieve him from the necessity of paying into Court the whole of the decretal amount to entitle him to an order setting aside the sale. This question has been considered by this Court on three occasions. It arose for the first time in Vedala Lakshminarasimha Charyulu v. Pacha Lakshmiamma (1912) M.W.N. 756, which was decided by a Bench composed of by Abdur Rahim and Sundara Aiyar, JJ. It was there held that an agreement with the decree-holder's widow to treat a portion of the decree-debt as discharged in consideration of services rendered by the judgment-debtor to her husband was a valid discharge and the actual receipt of cash was not necessary. In Anantha Lakshmi Ammal v. Sankaran Nair (1913) 24 M.L.J. 205, Benson and Sundara Aiyar, JJ., held that a decree-holder was entitled to waive a portion of the amount due to him and that the waiver operated as payment under Rule 89. The decision in Vedala Lakshminarasimha Charyulu v. Pacha Lakshmiamma (1912) M.W.N. 756 was approved of. The question was fully discussed by Beasley, C.J., in Chathurvedula Subbayya v. Simha Venkata Subba Reddi (1935) M.W.N. 937, a case where the facts were similar to the facts in the present case. There a judgment-debtor put in an application under Order 21, Rule 89 and deposited the required five per cent, of the purchase money for payment to the auction purchaser, but he made no deposit for payment to the decree-holder because the latter had agreed to accept a mortgage from the judgment-debtor in satisfaction of the amount owing to him under the decree. As in the present case, the auction purchaser objected and contended that the judgment-debtor was required to deposit the amount in cash. This objection was overruled. The learned Chief Justice considered that the granting of the mortgage was a payment to the decree-holder within the meaning of the rule and expressed the opinion that a decree-holder could if he chose waive the whole of the decretal amount, in which case the judgment-debtor would not be required to make any deposit in Court. The Calcutta High Court shares the opinion of this Court on this question - see Jyotish Chandra Ghose v. Bireswar Haldar (1935) 39 M.W.N. 829 and National Insurance Co., Ltd. v. Ezekiel Aaron David I.L.R. (1937) 2 Cal. 606. In the judgment in the latter decision reference was made to the decision in Chathurvedula Subbayya v. Simha Venkata Subba Reddi (1935) M.W.N. 937.
4. Sulaiman, C.J., expressed an opinion to the contrary in Janki Prasad v. Lekhraj (1933) I.L.R. 55 All. 697, but we have been given to understand that there are no reported cases which support it and the opinion was certainly obiter as cash had been paid in that case. After observing that the question whether the amount had been actually received by the decree-holder was one of fact, the learned Chief Justice said that a mere compromise or admission of the decree-holder would not be sufficient. It would be incumbent on the judgment-debtor to satisfy the Court that the amount not deposited in Court had been actually received by the decree-holder within the time fixed. This case was also considered by Beasley, C.J., in Chathurvedula Subbayya v. Simha Venkata Subba Reddi (1935) M.W.N. 937 and I agree that the opinion expressed in Vedala Lakshminarasimha Charyulu v. Pacha Lakshmiamma (1912) M.W.N. 756 and Anantha Lakshmi Ammal v. Sankaran Nair (1913) 24 M.L.J. 205 is preferable.
5. The learned Advocate for the appellant has placed great reliance on the decision of the Privy Council in Seth Nanhelal v. Umrao Singh (1930) 60 M.L.J. 423 : L.R. 58 I.A. 50 (P.C.), but when the judgment is examined, it is quite clear that it has no application in the present case. The facts in that case were these. The sale in execution took place on the 15th December, 1923. On the 10th May, 1924, the decree-holders accepted a mortgage in satisfaction of the decretal amount. On the 28th June, 1924, some nine months after the sale had taken place, an application was filed by the judgment-debtors to the Court for an order regarding the adjustment. The Judicial Committee held that after a sale in execution had taken place no adjustment under the provisions of Order 21, Rule 2 could take place because that rule clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment-debtor and the decree-holder, and when no other interests have come into being. Their Lordships did not consider the question whether Order 21, Rule 89 requires a payment by the judgment-debtor to the decree-holder to be in cash. That question did not arise and the questions which did arise are not questions which arise in this case.
6. In my judgment any payment or adjustment made by the judgment-debtor which satisfies the decree-holder is a payment within the meaning of the rule. In this case the decree-holder was paid most of the amount due to him and the balance, Rs. 10, was deposited into Court by the judgment-debtors when they made the application for setting aside the sale. I hold that the application and the payment into Court were in time and it follows that in my opinion the decision of the District Judge is correct. I would dismiss the appeal with costs of respondents 1 and 2.
King, J.
7. I agree.
Krishnaswami Aiyangar, J.
8. I concur and have little to add except on one aspect of the argument as presented to us by the learned advocate for the petitioner. His main contention was that payment in cash and in cash only was contemplated by Order 21, Rule 89 of the Code. Such a strict construction is not only not warranted by the words used in the rule but is opposed to the view consistently taken by this Court for a long number of years, as pointed out by my Lord. Nor is there any substance in the contention that the decision of the Privy Council in Seth Nanhelal v. Umrao Singh (1930) 60 M.L.J. 423 : L.R. 58 I.A. 50 (P.C.) has rendered that view no longer tenable.
9. It was urged that whatever the form, the payment or what was its equivalent must have been made or done on or before the 30th day after the sale, and in no event later. The fact that the Court was closed on the last day of the period should, it was said, make no difference as it provides an excuse only when the thing to be done has to be done in Court as for instance when a petition or other proceeding has to be presented or where a deposit in cash has to be made in Court. But where an applicant chooses a form of payment, as the assignment of the mortgage in the present case, which can or may be done outside Court, he must in order to qualify himself under the rule, complete the payment in the chosen form before the expiry of the 30 days as he should not be permitted to plead Section 4 of the Limitation Act, in respect of an act for the doing of which, it made no difference whether the Court was closed or, open. On this argument though the application under Order 21, Rule 89 would be in time if filed on the day the Court reopened, it must necessarily fail as the condition precedent, namely, the deposit had not been made in time. Two reasons were adduced in support of the argument. First it was said that the period within which the deposit is to be made, namely, 30 days is a period fixed not by the Limitation Act which contains the ameliorative provision referred to above, but by Rule 92 which cannot be affected by the Limitation Act in the absence of anything in the Code itself to the contrary. Secondly it was urged that Section 10 of the General Clauses Act which contains a provision parallel to Section 4 of the Limitation Act is equally ineffective in a case of this kind. The first contention ignores the fact, that Rule 92 fixes a period of 30 days not for the doing of something outside Court equivalent to a deposit into Court, but for the making of a deposit as such into Court. The former method of payment is not governed by the rule, and the period of 30 days fixed by it does not therefore apply to it. The argument would result in the anomaly that there would be two different periods, one fixed by Article 166 for the application, and the other by Rule 92 for the deposit, which may not in all cases synchronise. Such a result could never have been intended by the Legislature. The second argument based on Section 10 of the General Clauses Act is open to the same objections. Further this section is by force of the proviso expressly made inapplicable to any act or proceeding to which the Limitation Act applies.
10. It appears to me that the true view to take of Order 21, Rule 89, Civil Procedure Code, is that what is done by consent of parties as a substitute for the deposit, is to be regarded as its equivalent in every respect and judged by the same principles as those applicable to a deposit. By that consent, what was not in fact a payment in cash is turned into a deposit within the meaning of the rule, to be acted upon by the Court in all respects as if it were a payment in cash.