NIRANJAN MAL Vs. ASA RAM AND ORS.

JUDGEMENT

(1.) THE facts of the case giving rise to this appeal are mentioned in my .Meter of K -7 -1952 by which the case was referred to the Division Bench. That order should be read as a part of the final order.

(2.) THE position taken up by the Appellants counsel is two -fold. First is that since the sale Miras confirmed by the executing Court under is 92 of Order 21, C.P.C. and the Plaintiffs' suit is virtually to set aside that order of the executing Court, it is barred by Sub -rule (3) of Rule 92. Secondly he contends that the questions raised by the Plaintiffs in the suit in so far as they relate to auction -purchaser's failure to deposit three -fourth of the purchase money and the legality of the sale, are questions relating to execution and accordingly they could only be agitated by an application under Section 47, C.P.C, and not by a regular suit.

(3.) IN - 'Bhim Singh v. Sarwan Singh', 16 Cal 33 the auction -purchaser at a court -sale failed to deposit 25 per cent of the amount of the purchase money in accordance with the provisions of Section 306 of the Code of 1882 which corresponds to our present Rule 84. It was held by the High Court that this constituted a material irregularity in conducting the sale and the matter must be enquired into upon an application under Section 311 (of the C.P.C. of 1882) and consequently a separate suit to set aside a sale on such a ground would not lie. The same view was taken by another bench of the same Court in 'Mahomed Ali Mia v. Kiberia Khatun', 9 Ind Cas 66 (Cal). There is no doubt that the deposits of one -fourth of the purchase money and that of the remaining three -fourth are dealt with by two different Rules, one by Rule 84 and the other by Rule 85, but as regards the consequences that must follow when default is made in payment of these amounts they are the same in both the erases, because the word used in Rule 84 as well as in Rule 86 is "shall". The first (Rule 84) says that in default of such deposit the property shall forthwith be sold. Similarly it is mentioned in Rule 86 that in default of payment within the period mentioned in Rule 85 the property shall be resold. This makes me think that the above mentioned cases which relate to the auction -purchaser's failure to deposit one -fourth of the purchase money also apply to the case where the three -fourth money is not paid in time.