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1969 Supreme(AP) 95
Andhra Pradesh High Court
Judges : GOPALRAO EKBOLE, RAMACHANDRA RAO
G.Narasimhappa - Appellant
Versus
G.Ramachandra Rao - Respondent
Decided On : 07-07-69
The court can treat the amount paid towards poundage as the amount paid towards solatium under Order 21, Rule 89, CPC, if the totality of the amount deposited along with the application is equal to or more than the aggregate of the amounts specified in clauses (a) and (b) of the rule.
Headnote:
CIVIL PROCEDURE CODE - ORDER 21, RULE 89 - DEPOSIT OF AMOUNT - APPROPRIATION OF POUNDAGE TOWARDS SOLATIUM - VALIDITY - COURT'S POWER TO APPROPRIATE - LIMITATION.
Fact of the Case:
The petitioner, a decree-holder-purchaser, challenged the order of the lower appellate court setting aside the sale of property in execution of a decree. The first respondent, a mortgagee of the property, had filed an application under Order 21, Rule 89 of the Civil Procedure Code (CPC) to set aside the sale. He deposited an amount along with the application, which included the amount due under the sale proclamation, solatium, and poundage. However, the amount deposited for solatium was mistakenly mentioned as Rs. 40 instead of Rs. 80. The first respondent filed an application for amendment of the affidavit to correct the mistake. The trial court dismissed both the application to set aside the sale and the application for amendment. The lower appellate court allowed the appeal and set aside the order of the trial court.
Finding of the Court:
The court held that the first respondent had complied with the provisions of Order 21, Rule 89, CPC by depositing an amount which was more than what was required under the rule. The court further held that the court could treat the amount paid towards poundage as the amount paid towards solatium, as the rule does not contemplate the deposit of any amount towards poundage at the time of filing of the application under Order 21, Rule 89, CPC.
Issues: 1. Whether the first respondent had complied with the provisions of Order 21, Rule 89, CPC by depositing an amount which was more than what was required under the rule? 2. Whether the court could treat the amount paid towards poundage as the amount paid towards solatium?
Ratio Decidendi: 1. The court held that the first respondent had complied with the provisions of Order 21, Rule 89, CPC by depositing an amount which was more than what was required under the rule. The court reasoned that the rule does not contemplate the deposit of any amount towards poundage at the time of filing of the application under Order 21, Rule 89, CPC, and that the mention of the two items separately in clauses (a) and (b) of the rule is to facilitate the calculation of the amount payable under each head and also to facilitate payment to the purchaser and the decree-holder. 2. The court held that the court could treat the amount paid towards poundage as the amount paid towards solatium. The court reasoned that the rule does not require that the amount paid under the two heads should be separately shown as paid under the two different heads mentioned in clauses (a) and (b), and that if the totality of the amount deposited along with the application under Order 21, Rule 89, CPC is equal to or more than the aggregate of the amounts specified in clauses (a) and (b), the requirement of the rule could be said to be fully complied with.
Final Decision: The court dismissed the revision petition filed by the petitioner, upholding the order of the lower appellate court setting aside the sale of property in execution of a decree.
( 1 ) THIS revision has been referred to a Bench of two judges by our learned brother, Venkatesam, J. , as the revision raises a question of importance relating to a matter of procedure on which the judicial opinion is stated to be not quite uniform. The question arises out of the following facts. The first respondent herein the mortgage of the property sold in execution of a decree in E. P. No. 153 of 1962 in S. C. No. 77 of 1961 on the file of the Court of the District Munsiff of Anantapur.
( 2 ) THE first respondent herein is the decree holder and respondents 2 to 7 are the judgment debtors. The petitioner herein obtained a decree against the respondents 2 to 7 in S. C. No. 77 of 1961 on the file of the Court of the District Munsif, Anantapur. In execution of the decree, the proper ties of the judgment-debtors were brought to sale in E. P. No. 153 of 1962. The sale proclamation amount was Rs. 757-87p. The 1st respondent herein who is the mortgagee of the properties sold, filed an application e. A. No. 597 of 1963 for setting aside the sale under Order 21, rule 89, Civil procedure Code. He deposited a sum of Rs. 849-42p. along with the said application.
( 3 ) THE amount to be deposited by him under Order 21, rule 89, Civil Procedure code, is Rs. 757-85p. being the amount due under the sale proclamation, rs. 80 towards five per cent solatium on the purchase money of Rs. 1 ,600. In the application E. A. No. 507 of 1963 filed under Order 21, rule 89, Civil Procedure Code, the first respondent deposited a sum of Rs. 849-42p. towards the following items. (i) Rs. 757-87p. towards the amount due under the sale proclamation. (ii) Rs. 40 towards 5 per cent, solatium, and (iii) Rs. 51-57 P. towards poundage.
( 4 ) AS the amount of solatium was mistakenly mentioned as Rs. 40 instead of Rs. 80 the first respondent filed an application E. A. No. 124 of 1964 under Order 6, rule 17 civil Procedure Code, and sections 151 and 162, Civil Procedure Code, for amendment, of the affidavit filed in E. A. No. 507 of 1963 so as to make the amount of solatium as rs. 80 instead of Rs. 40. In the affidavit filed in support of this application for amendment, the first respondent stated that he had deposited Rs. 849-42p. in E. A. No. 507 of 1963, that the amount due under the sale proclamation was Rs. 757-85 P. and 5 per cent, solatium on the purchase money of Rs. 1,600 was Rs. 80 that it came to Rs. 837-85p. that he had actually deposited Rs. 849-42?. that a sum of rs. 11 -57p. was deposited in excess of the amounts required to be deposited under order 21, rule 89, Civil Procedure Code, that the entire sum deposited by him should be treated as deposited towards the sale proclamation amount and the 5 per cent solatium and that para 3 of the affidavit in E. A. No. 507 of 1963 should be amended by noting the solatium as Rs. 80 instead of Rs. 40.
( 5 ) THE petitioner herein opposed the applications for setting aside the sale as well as the application for amendment. The petitioner stated that in the application e. A. No. 507 of 1963 the petitioner had clearly stated that he had paid the sum of rs. 51-57p. towards the poundage which he was bound under law to pay that the first respondent should not be permitted to treat the amount paid towards the poundage as paid towards solatium that such an acceptance of the amount towards solatium would be beyond the period of limitation and that it would defeat the rights which had accrued to the petitioner. He also stated that inasmuch as there was deficit in the amount payable under Order 21, lule 89, Civil Procedure code, the petition for setting aside the sale was liable to be rejected.
( 6 ) BOTH E. A. No. 124 of 1964 and E. A. No. 507 of 1963 were heard and by separate orders dated 9th April, 1964 the learned District Munsiff, dismissed both the applications. The Learned District Munsif took the view that the amount of rs. 40 only was deposited towards solatium which was not correct, that the a
