AMBATI RAGHAVALU Vs. MOVA VENKAMMA AND OTHERS

JUDGEMENT

(1.) The Civil Miscellaneous Second Appeal is referred to a Bench by Qamar Hasan, J., as he thought that the judgment of a Single Judge of this Court in Suryanarayana Murthi v. Southern Agencies,, 1961 Andh LT 138 : (A.I.R. 1961 Andhra Pradesh 480) requires reconsideration.

(2.) The facts leading up to this appeal are briefly these. A decree was obtained against the appellant in O.S. No.179 of 1948 and, in execution of that decree, the property was brought to sale on 3-9-1956 and the second respondent purchased the property, he being the highest bidder. He paid 25 per cent of the sale price on that day itself and the balance of the sale price on 17-9-1956. As regards the stamp for the certificate, he applied for challan on 17-9-1956 but it was not issued till 20-9-1956. As soon as he collected the chalan, he deposited the amount required for the stamp on 20-9-1956 itself. The judgment-debtor presented an application to set aside the sale contending that as the 2nd respondent did not furnish non-judicial stamp before 18-9-1956 as required by the relevant rules of the Civil Procedure Code, the property should he re-sold. This application of the judgment-debtor was dismissed by the District Munsif who took the view that the auction purchaser had not committed any default in depositing the cost of the general stamp, as he had applied for the chalan in time and paid the money into Court immediately after the issue of the chalan. The judgment-debtor carried an appeal to the Subordinate Judge's Court, Masulipatam. The Subordinate Judge in agreement with the opinion of the trial Court disallowed the appeal. Aggrieved by the decision of the lower appellate Court, the judgment-debtor has preferred the present Civil Miscellaneous Second Appeal.

(3.) The point presented in support of this appeal is that as the auction-purchaser failed to supply the general stamp for the certificate or to deposit the value or amount required for the stamp as required by Order XXI Rule 85, the sale held on 3-9-1956 was ineffective and the Court was bound to re-sell the properties. It is argued that the rule stated in 1961 Andh L T 138 : A.I.R. 1961 Andhra Pradesh 480 is not sound and is opposed to the terms of Rule 85 which are mandatory and not directory as thought by the learned Judge who decided 1961 ALT 138 : A.I.R. 1961 Andhra Pradesh 480. This contention has to be given effect as Rule 85 has employed mandatory language and the omission to satisfy the requirement of Order XXI Rule 85 vitiates the sale. The effect of the non-observance of the terms of Rule 85 is set out in Rule 86. That rule calls upon a Court to order a resale in the event of the deposit not being made within specified time.