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High Court of Calcutta
P.B. Mukharji, J.
Rabindra Nath Banerjee – Appellant
Versus
Harendra Kumar Chakravarty – Respondent
Suit 2933 of 1953
Decided On : Jan 13, 1956
ORDER 21 RULE 89, CIVIL PROCEDURE CODE - SALE SET ASIDE - APPLICANT'S INTEREST IN PROPERTY - DEPOSIT OF 5% PURCHASE PRICE - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:
The applicant, Sunil Kumar Mukherjee, applied to set aside a sale of premises held in execution of a decree. The applicant claimed to have acquired an interest in the property through an agreement for sale with the judgment-debtor prior to the sale. The respondent-purchaser, Kanak Ghose, objected to the application on the grounds that the applicant had no locus standi and that Order 21, Rule 89, Civil Procedure Code (CPC) did not apply to the case.
Finding of the Court:
The court held that the applicant had sufficient interest in the property to make the application under Order 21, Rule 89, CPC. The court found that the agreement for sale, coupled with the payment of earnest money, created a charge in favor of the applicant, which constituted an interest in the property. The court also held that the applicant was not required to deposit the entire decretal amount in court, as the decree-holder had already been paid in full.
Issues: 1. Whether the applicant had sufficient interest in the property to make the application under Order 21, Rule 89, CPC. 2. Whether the applicant was required to deposit the entire decretal amount in court, even though the decree-holder had already been paid in full.
Ratio Decidendi: 1. The court interpreted the term "interest" in Order 21, Rule 89, CPC, to include not only completed and perfected title but also a title in process of maturity. The court found that the agreement for sale, coupled with the payment of earnest money, created a charge in favor of the applicant, which constituted an interest in the property. 2. The court interpreted Order 21, Rule 89, CPC, to allow an applicant to deposit only the 5% statutory compensation for the purchaser, even if nothing remained due to the decree-holder. The court reasoned that the purpose of the rule was to provide a remedy to judgment-debtors who had been deprived of their property due to a sale held in execution of a decree, and that this purpose would be defeated if the applicant was required to deposit the entire decretal amount in court.
Final Decision: The court set aside the sale and made an order in terms of clause (1) of the summons. The court also permitted the other purchaser, Ranjit Ghosh, to withdraw his deposit without a fresh application.
P.B. Mukharji, J.
1. THIS is an application on chamber summons by Sunil Kumar Mukherjee of No. 4/5, Hem Kar Lane, Calcutta for an order setting aside the sale of premises Nos. 21/B and 31, Gokul Mitra Lane, Calcutta, held by the Sheriff on 24-8-1955 in execution of the decree passed in this suit.
2. THE application is on summons to the plaintiff decree-holder, the defendant judgment-debtor and the two purchasers. THE plaintiff states that his decree has been satisfied by the applicant. THE defendant has not appeared. Of the two purchasers one Ranjit Ghose appearing through an attorney has neither supported nor opposed this application and his only submission is that in case the Court set aside the sale he should be allowed to withdraw the deposit that he had made without a further application, a course to which there is no objection from any of the parties. THE opposition is from the other purchaser Kanak Ghose who is himself an advocate of this Court and who has appeared in person.
The chamber summons was taken out on 21-11-1955 on the reopening of the Court after the long vacation on which date the applicant obtained the following ex parte order:
"Application noted as made today. Leave granted to the applicant to deposit Rs. 637-8-0 with the Registrar being the 5% of the purchase price for payment to the auction purchasers. The Registrar to act on a signed copy of the fiat. This order is without prejudice to any objection that may be taken later."
3. THE summons was returnable on 28-11-1955.
4. THE facts of the case are few. THE decree in this suit was made on 28-4-1954 directing the defendant to pay to the plaintiff the sum of Rs. 8696/- with interest and three-fourths of the taxed costs. In execution of the decree the said premises were attached in 1954 and thereafter the Sheriff on 24-8-1955 sold the said premises. Respondents Ranjit Ghose and Kanak Ghose became the highest bidders and purchasers respectively on 21/B, Gokul Mitra Lane for Rs. 2,2007- and 31, Gokul Mitra Lane for Rs. 10.550/-. THE sale proclamation issued by the Sheriff shows that the amounts for which the sale was ordered were the sum of Rs. 8,696/- being the principal of the decree with interest and the sum of Rs. 1371-12-8 being the three-fourths share of the taxed costs. THE interest came up to Rs. 816-S-0 and the approximate costs of execution proceedings about Rs. 500/-.
On 11-7-1955 while the said premises were under attachment the judgment-debtor entered into an agreement for sale with the applicant in respect of No. 31, Gokul Mitra Lane. It is stated in the petition that the price fixed under that agreement for sale was Rs. 13,000/- and that Bs. 5001/-was paid as earnest money on 11-7-1955. The sale by the Sheriff took place thereafter on 24-8-1955. Then what the applicant did was to pay to the defendant the said purchase price in two instalments one of Bs. 6,000/- on 20-11-1955 and the balance with interest and costs on 21-11-1955 being the date on Which the present application was made.
5. THE applicant's contention is that what remained to be paid thereafter Was only the sum of Rs. 637-8-0 being 5% of the purchase price as solatium to the purchaser. It was this amount of money which was deposited in Court with the Registrar on 21-11-1955. THE applicant submits that he is entitled to make this application and set aside the sale under the provisions of Order 21, Rule 89, Civil P. C.
6. TWO objections have been urged by the respondent purchaser Kanak Ghose. The first objection is that the applicant has no locus standi to make this application. The second- objection is that Order 21, Rule 89 has no application to the present case and therefore the application is incompetent.
Taking up the first objection, the argument is that the applicant has no interest to set aside the sale. The language of Order 21, Rule 89 states that any person "holding an interest therein" (property sold in execution) "by virtue of a title acquired before such sale" may
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