RAMCHANDRA Vs. MANGALI PD. AND OTHERS

JUDGEMENT

(1.) THIS is an appeal by the auction -purchaser from an order of the learned D. J., Satna setting aside the sale for a sum of Rs. 1,800/ - to him, of a house belonging to the judgment -debtor Shikhar Chand Jain, in execution of a decree against him by the firm Phoolchand and Suresh Chandra. The objector was Mangali Prasad, mortgagee of the house from the judgment -debtor for a sum of Rs. 14,000/ -, the material irregularity was the holding of the sale after an adjournment of about a month, without issue of a fresh sale proclamation. The points for decision are firstly whether the objection under O. 21 R. 90 was time -barred. Secondly, whether there has been a material irregularity causing substantial injury; thirdly, the sale having been set aside the auction -money having already been withdrawn by the decree -holder, whether an order for refund of the money should not have been made.

(2.) THE facts of the case are the following: This house, which is apparently the only property of the judgment -debtor, was attached, and put up for sale on the date noted in the sale proclamation. However, no bidder turning up on that day, the sale was adjourned to 24 -11 -51 by about a month, but no fresh proclamation was issued. On that date the auction was held near the property by the court's nazir; and the highest bid was for Rs. 1,800/ - by the present appellant, Seth Ram Chandra. The bid -sheet and the connected papers were put up before the D. J. on 30 -11 -51, on which date he ordered that the bid of Ramchandra Seth should be accepted and the house sold to him for Rs. 1,800/ -. For reasons which are not at all clear, the 25 per cent. earnest -money was not deposited immediately, but was allowed to be deposited on 5 -1 -1952. The house was in mortgage to the respondent 1 Mangali Prasad for Rs. 14,000/ -, but it was sold up without any mention of this mortgage. The mortgagee filed an application under O. 21 R. 90 on 25 -1 -1952 within one month from the date of the deposit of 25 per cent., but beyond the one month period from the date the Court accepted the bid of the auction -purchaser. The learned D. J. held that there was a material irregularity, which had caused substantial injury to the mortgagee, who was interested in the property and held that the sale was fit to be set aside. The auction -purchaser did not seriously urge anything against this, but averred that the application under O. 21 R. 90 was barred by limitation, the starting point according to him being not the date of deposit under O. 21 R. 84 but the date on which the bid was accepted. Possibly by oversight the learned D. J. failed to pass an order that the auction -purchaser should get a refund. It appears that before the application under O. 21 R. 90 the auction -purchaser had deposited the balance of the bid money, and the entirety was, withdrawn by the decree -holder.

(3.) IN the present appeal the auction -purchaser alleges that the order under O. 21 R. 90 should be set aside because that application was time -barred. He further argues that if the sale must be set aside at all, this Court should pass an order that the decree -holder should re -deposit the amount in the executing court and the auction -purchaser should be allowed to withdraw it.