UTTAMCHAND MILAPCHAND Vs. BALKRISHNA RAMNATH

JUDGEMENT

(1.) THIS civil revision application is filed by an auction-purchaser of a certain immoveable property belonging to the jugment-debtor in respect of a decree passed against him in suit No. 5/3' of 1956 in the Court of Munsiff at Sailu. On the date of the auction of the property, i. e. on the 17th August, 1957, the property was knocked down to the applicant for Rs. 2500/- and the applicant-paid 25 per cent of that price on the same day. It appears that on 29th August, 1957, he filed an application for extending the time to deposit the balance of the purchase price in Court. It further appears that neither the judgment debtor nor the decree-holder raised any objection to the application being granted by the Court. The application was accordingly granted and the applicant was required to pay the balance of the purchase price into Court on or before 18th September, 1957. It appears, however, that the applicant could not manage to deposit the balance of the purchase price before 18th September, 1957, but when the application reached hearing on the 18th September, 1957, the applicant offered to pay the balance of the purchase price into the Court. By that time, however, it appears, attention of the Court was drawn to the provisions of Order 21 Rule 85 of the Code of Civil Procedure which provides:-

(2.) IT was contended on behalf of the applicant that although the provisions of Order 21 Rule 85 were mandatory in their character, it was open to the Court to extend the time to enable the auction purchaser to pay the balance of the purchase price if both the judgment creditor and the judgment-debtor did not object to it. It was further contended that non-payment of the balance of the purchase price within the period fixed by Order 21 Rule 85 only amounted to an irregularity and that it was open to the judgment-debtor to waive irregularity. If, therefore, according to the learned advocate for the applicant, the judgment-debtor did not object to the time being extended, in this case for the auction purchaser, to pay the balance of the purchase price, the validity of the sale could not be said to have been affected at all and, therefore the learned Judge should be directed to accept the payment of the balance of the purchase price in completion of the auction sale.

(3.) IT was on the other hand contended on behalf of the opponent that in Case of mandatory provisions there could never be a question of waiver thereof. No amount of consent either of the judgment creditor or of the judgment-dehtor or both could confer jurisdiction upon the executing Court to extend time for payment of the balance of the purchase price by the auction purchaser, if the provisions of Order 21 Rule 85 required that the full purchase price shall be paid within 15 days from the date of the sale and accordiogly, the Court had no jurisdiction to extend the time at all. In support of this contention reliance was placed upon a decision of the Supreme Court in Manilal Mohanlal v. Sardar Sayed Ahrncd Sayed Mahmad, AIR 1954 SC 349. His Lordship Mr. Justice Ghulam Hasan. who delivered the judgment of the Court observed at page 353, paragraph 8 as follows:.