MASTER KABUL SINGH Vs. S BALWANT SINGH

JUDGEMENT

(1.) In execution of a decree obtained by Gujjar Mal against firm Piara Lal Parma Nand a Bungalow belonging to th judgment debtor was attached and sold. The auction was conducted by the Court-auctioneer on 9th February, 1954 when Kabul Singh, ex-President Municipal Committee, Jullundur, made a bid of Rs. 11,000 and the Court-auctioneer knocked down the property to him as the highest bidder and he was declared to be the purchaser of the property. Kabul Singh gave a cheque for Rs. 2,750 to the auctioneer as 25 per cent, deposit under Order 21 Rule 84, Civil Procedure Code. The court-auctioneer accepted the cheque on the ground which he has stated in his report to the Court and that is that according to the auction purchaser as the sale had concluded after the expiry of the bank-hours it was not possible for him to deposit the cash. This cheque, however, was dishonoured by the Bank and the auctioneer reported the matter to the Court. The executing Court by order dated the 16th of February, 1954 ordered issue of fresh proclamation for sale to be held on the 23rd of March, 1954 and in that order the executing Court observed -

(2.) The property was sold again but we are not concerned in this case with the resale of the property which took place subsequently. The auctioneer then applied to the Court that he was entitled to realise the commission for holding the first sale from Kabul Singh and the executing Court held Kabul Singh liable to pay Rs. 400 as the commission of the auctioneer. Kabul Singh has come to this Court in revision and Shri Som Datta Bahri, the learned counsel for the petitioner, has argued before me that his client was not liable to pay the commission of the auctioneer as the sale was set aside on account of the default of the Court auctioneer. The only point involved in the present petition therefore is whether the Court-auctioneer is entitled to realise his commission from Kabul Singh or not.

(3.) Now, under Order 21 Rule 65, Civil Procedure Code, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf. Under the rules framed by this Court sales in execution of decrees shall ordinarily be conducted by the Court-auctioneer (vide paragraph 19 of Chapter 121, of the Rules and Orders of this High Court, Volume I). Accordingly the Court-auctioneer held the sale. The sale was completed as soon as the Court-auctioneer accepted the bid of Kabul Singh and the Court-auctioneer accepted the cheque for Rs. 2,750 under Order 21 Rule 84, Civil Procedure Code. It was argued by the learned counsel for the petitioner that the sale cannot be considered to be complete till the Court had accepted the bid of Kabul Singh and has relied on certain decisions of the Calcutta and Patna High Courts. The view of this Court, however, has always been that a sale is complete as soon as the auctioneer accepts the bid. It was held by Tapp, J. in Nur Din v. Bulaqi Mal and Sons, 1931 AIR(Lah) 78 that when the officer of the Court or such other person as the Court may appoint to conduct a sale as provided in Order 21 Rule 65, knocks down the property to the highest bidder, such person must be deemed to have been declared to be the purchaser of such property and the sale is consequently complete. This view of the law was accepted by a Division Bench of the Lahore High Court in Hoshnak Ram v. The Punjab National Bank Ltd., 1936 AIR(Lah) 555 In his commentary on the Code of Civil Procedure, 12th Edition, Mulla has also expressed the view of the law in these words at page 867 -