SOLANA RAMACHANDRA RAO & ORS. versus MADDI KUTUMBA RAO & ANR.

Citation: [1967] 3 S.C.R. 703 · Decided: 19-04-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Dismissed

Judgment (excerpt)

A 
SOLANA RAMACHANDRA RAO & ORS. 
v. 
MADDI KUTUMBA RAO & ANR. 
April 19, 196-7 
II 
[K. N. WANCHOO, C.J., V. BHARGAYA AND G. K. MITTER, JJ.] 
c 
D 
E 
•• 
G 
II 
Code of Civil Procedure (Act 5 of 1908), O.XXI, r. 89 (b)-Deposit 
of amounts to be paid to decree .. /tolder-U.'hen can be dispensed 1vith. 
Properties belonging to a trust were sold in execution of a decree ob· 
tained by the second respondent against the trust and were purchased by 
the first respondent. Thereafter, a suit was filed under •· 92, C.P.C. for 
the removal of the trustee> wherein it was prayed that the sale in favour 
of the first respondent may be set aside and adequate provision for dis-
charging the decree of the •econd 
respondent be made in the scheme 
to be framed for managing the trust. 
The second respondent agreed to 
such a course and thereupon, the appellant, who was appointed a receiver 
in the suit under s. 92, applied to the- Court under O.XXI, r. 89 C.P.C. 
for setting aside the sale. 
He deposited certain 
amounts for payment 
to the first respondent purchaser. He did not, however, deposit 
the 
amount specified in the proclamation of sale for payment to the second 
respondent decree-holder, as required under O.XXI, r. 89(b), but instead, 
prayed that the Court may dispense with such deposit. 
The Court allow-
ed the application, but on appeal by the purchaser the High Court set 
aside the order. 
In appeal, by the receiver, to this Court, 
HELD : If at the time when the application under O.XXI, r. 89 is 
tnade by the judgment:debtor, the decree has been satisfied or adjusted, 
the deposit of any money for payment to the decree-holder is not called 
for. 
But a mere promise on the part of the judgment-debtor to take 
steps to ensure payment of -the decretal amount, even if acceded to by 
the decree-holder would not have the same effect. 
In the present case 
the decree w~ kept alive and the dec:ee-holder had merely a~eed t~ 
postpone realising the decretal amount 10 case satisfactory provision for 
payment of hi! dues was made in the suit. There was no adjustment of 
the decree wh1c~ could be recorded under O.XXI, r. 2; neither had the 
deer~ been satISfied. 
Therefore, the necessity for the judgment-debtor 
ma~tng a deposit under the provisions 
of O.XXI, 
r. 89(b) 
was not 
obvtated. [706 B-C, E-H; 707 A-BJ 
CIVIL APPELLATE JURISDICTION : Civil Appeal No 805 of 
1964. 
. 
Appeal from the judgment and order dated March 4 1963 of 
the Andhra Pradesh High Court in Appeal against order' No 4 of 
1960. 
. 
A. K. Sen, and T. Satyanarayana, for the appellants 
Bishan Narain, A. Vedaval/i and A. V. Rangam, for re>pon-
dent No. 1. 
· 
R. Thiagarajan, for respondent No. 2. 
704 
SUPREME COURT REPORTS 
[1967] 3 S.C.R 
The Judgment of the Court was delivered by 
Mitter, J. 
This is an appeal by a certificate granted by the 
High Court. of Andhra Pradesh against a judgment and order 
of that court dated March 4, 1963. 
The appeal is by a re-
ceiver appointed in a suit under the provisions of s. 92 of the 
Code of Civil Procedure with the object of applying for setting 
aside a sale of certain properties belonging to a choultry. 
The facts shortly are as follows :-The second respondent 
before this Court obtained a decree in 0. S. No. 116 of 1949 
of Sub-Court, 
Vijayawada against 
Tammana Tatayya and 
Narayana Murty Annapurna Satram and put some property to 
execution sale. The properties of the Satram were sold in court 
auction on July !', 1957 and the first respondent, Maddi Kutum-
barao became the purchaser for Rs. 24,600. 
O.S. No. 
60 of 
1957 was instituted in the same court for the . removal of the 
two trustees on the ground of mismanagement. The decree-
holder was made a party to this suit filed under s. 92, Civil Pro-
cedure Code and one of the reliefs prayed for in the suit was 
that the sale above-mentioned be set aside and provision be 
made for payment of the. decree amount in O.S. No. 116 of 
1949 und.er the scheme to be settled by the court. 
To quote 
from paragraph 11 of the plaint in that suit, the plaintiff asked 
that 
"all proceedings in execution of the decree obtain-
ed by the 3rd defendant against the Satram be stayed 
pendmg the framing of the scheme and that the sale 
in favour of the 4th defendant held on 1-7-1957 by 
the Sub-Court, Gudivada in E.P. No. 37 of 1956 in 
O.S. 116/ 49 Sub-Court, Vijayawada, be set aside and 
that adequate provision for the discharge of the same 
be made." 
The plaint bears the d

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