S N ACHARYA Vs. G PADMANABHA ACHARYA

JUDGEMENT

(1.) THE order of the final decree Court is F. D. P. 13/1990 passed in i. A. No. 15 is assailed in this Civil Revision Petition preferred by the 2nd Defendant in the suit.

(2.) THE petitioner is the 2nd defendant in the lower Court. The first respondent is the plaintiff and the 2nd respondent is 1st defendant. A suit for partition was decreed and a final decree application has been filed in F. D. P. No. 13/1990. The property described in Schedule-'b' was ordered to be auctioned between the parties. The terms of sale was settled by the parties. One of the condition was that the successful bidder should deposit 25% of the auctioned money on the date of auction sale and the successful bidder should deposit the balance of auctioned money within 15 days from the date of auction sale and one of the term of the agreement was that if the successful bidder failed to deposit the money within the period stipulated, the auction in his favour stands cancelled and the next immediate highest bidder will be declared the successful bidder and he shall deposit the auction money into court within 15 days from that date. The 1st defendant also submitted that as per the terms of sale, the lower Court passed the order accepting the terms of sale as proposed by the plaintiff and then fix the date for action. The 1st defendant was the successful bidder and his bid was for Rs. 40 lakhs and the 2nd defendant (the petitioner herein) was the 2nd highest bidder whose bid amount was Rs. 41/2 lakhs and the plaintiff's bid was only Rs. 4 lakhs, who is the 3rd highest bidder. The 1st defendant who was first highest bidder deposited a sum of Rs. 10 lakhs subsequently he was not able to deposit the balance as per the order of the Court. It is claimed therefore, the petitioner herein has to be accepted as highest bidder and contra to this effect an application was filed by the petitioner under Section 151 CPC on 19. 09. 1997 for setting aside the auction sale proceedings and to held fresh sale on fresh terms. The petitioner/2nd defendant filed his objections and contested the case and the Court below by its order dated 18. 10. 1997 has allowed the application filed by the plaintiff/1st respondent herein and the sale of the suit 'b' schedule property held on 19. 9. 97 was set aside. It is that order, the correctness of which is questioned in the present crp.

(3.) IT is contended that the Court below having allowed the auction to be conducted on the terms proposed by the plaintiff, ought not to have set aside the auction sale. The application to set aside the sale is not maintainable in law in as much as the auction sale was conducted and held on the agreed terms. The question of review or amending the terms after the conclusion of the sale is illegal. The sale should not have been re-opened as the same amounted to final adjudication of the proceedings. Even otherwise, the Court below has failed in not holding the enquiry in view of the rival contentions of the parties. The Court below ought to have given permission to deposit as the 1st defendant committed a default. The finding of the court below that the petitioner has not deposited 25% of the bid amount as required under Order 21, Rule 84 of CPC is erronious and setting aside the sale under the above provisions of law is not proper, as the said provision is not applicable to the facts of this case, particularly when the plaintiff himself has proposed the terms of the sale which has been accepted by the Court and acted upon by all the parties, the plaintiff has estopped from making such application to set aside the sale.