NACHHATTAR SINGH Vs. BABU KHAN

JUDGEMENT

(1.) THIS second appeal filed by the judgment-debtor and two others arises out of an execution application in which the sale of property of the judgment-debtor was confirmed and the objection petition of Milkha Singh was dismissed.

(2.) THE facts giving rise to this appeal are not in dispute and are as follows. Rukan din (who has since died) and obtained a decree for the recovery of Rs. 2,400/against darbara Singh and in execution of that decree he got land belonging to the judgment-debtor and measuring 32 kanals and 2 marlas attached. In a subsequent execution application the land was ordered to be auctioned and the sale to place on 19th June, 1966. Babu Khan respondent was the highest bidder and he immediately deposited Rs. 900/- being the one-fourth of the sale-price. The balance of the money was, however, not deposited till 25th August 1966. While the property was under attachment Darbara Singh, the judgment-debtor executed a gift deed on 12th April 1965 in respect of his entire land measuring 99 bighas and 16 biswas in favour of Nachattar Singh and Milkha Singh. An objection petition under O. 21, R. 58, Civil P. C. was filed by Nachhattar Singh and Milkha Singh but this petition was dismissed by the executing Court and the suit brought by them under Order 21, Rule 63, was also dismissed. In view of these proceedings, the execution proceedings remained stayed and ultimately on 16th December 1968 the auction purchaser applied for the confirmation of the sale. Notice of this application was given to the parties concerned but as in the meantime Rukan din died his widow and daughters were brought on the record as his legal representatives. The legal representatives of the decree-holder have also applied for the confirmation of the sale and for the payment of money to them. Milkha singh, one of the transferees from Darbara Singh, filed an objection petition and all the three applications were disposed of by the trial Court by order dated 30th July 1969. Against this order, besides Milkha Singh who had file the objection-petition, Nachhattar Singh and Darbara Singh also filed an appeal which was dismissed by the impugned order.

(3.) ON behalf of the appellants the only argument raised was that as the auction-purchaser had failed to deposit the balance of the money within fifteen days as required by Rule 85 of Order 21, the sale was a nullity and the Court was bound to order the re-sale of the property. The learned Courts below following Shahzadi begum v. Hakim Manohar Lal, AIR 1955 Hyd 110 and V. I. Subramanyan nambudri v. V. K. V. Kammathi, AIR 1923 Mad 48 took the view that as the time was extended by the Court with the consent of the interested parties the sale was not rendered a nullity and that the rule can be waived by the persons who stand to benefit by the sale.