SIVARAYA PUNDARIKAKSHARAO Vs. LINGAREDDI VENKATAREDDI

JUDGEMENT

(1.) The petitioner herein is the judgment-debtor in Small Cause Suit No. 6 of 1960 on the file of the Subordinate Judges Court, Ongole and the respondent is the decree-holder. In execution of the decree, the decree-holder got attached the undivided half share of the judgment-debtor (Ac. 5-49 1/2 cents) out of a total extent of Ac. 10-99 cents of dry land in S. No. 157 in the village Ithamukkala, and brought it to sale. He obtained permission from the court to bid at the auction and to set off. The sale was held on 27-3-61 and the decree-holder him self became the highest bidder, his bid being for Rs. 2,225. The amount due under the decree on the date of the sale was Rs. 500. The decree-holder, though he was the highest bidder and the bid was knocked down in his favour, did not deposit 25 per cent on the amount of the purchase money with the officer conducting the sale under Order 21, Rule 84(1) C. P. C. But the next day, i.e., on 28-3-61, he applied to the lower court to permit him to deposit the entire sale amount after deducting the amount due to him under the decree and to direct the office to receive the same. The judgment-debtor resisted this application contending that the sale became a nullity and that there was no sale at all in the eye of law as the decree-holder who was declared to be the purchaser, failed to deposit immediately twenty-five per cent on the amount of his purchase money with the officer, who conducted the sale. The lower court framed the point for determination as follows:

(2.) It is strenuously contended by Mr. N. V. Suryanarayana Murthy, the learned counsel, who appeared for the petitioner, that though under Order 21, Rule 84(2), the Court may dispense with the requirements of the deposit of twenty-five per cent on the purchase money where the decree-holder himself is the purchaser and is entitled to set off the purchase money under Order 21, Rule 72, still in the present case, since there is no order of the court dispensing with the requirements of Order 21, Rule 84(1), the purchaser though he is a decree-holder, is bound to deposit twenty-five per cent of the purchase money immediately after the sale with the officer conducting the sale. Since such deposit is not made, it is argued, the sale is a nullity i.e., there is no sale at all in the eye of law and the court had no jurisdiction to receive the balance of the purchase-money and confirm the sale in favour of the decree-holder. On the other hand, it is contended by Mr. S. Suryaprakasam, the learned counsel for the decree-holder-auction-purchaser that, where the decree-holder himself obtains leave to bid and to set off, it was not necessary for him to make the deposit under Rule 84(1). In order to decide which of the respective contentions is correct, it is necessary to refer to Order 21, Rule 84, which is as follows;

(3.) I am also referred to the decision in Punnamchand Chatraban, Firm v. Satyanandam, ILR 57 Mad 38: (AIR 1933 Mad 804). But the following passage in the judgment makes it clear that there has to be an order of the court dispensing with the requirement of Rule 84: