RAM SINGH Vs. UTTAM CHAND

JUDGEMENT

(1.) Ram Singh decree-holder was the highest bidder in a Court auction sale held on 20th Nov., 1978 which was conducted in pursuance of a money decree for Rs. 11,500/- with costs and interest at the rate of 6 per cent per annum, obtained by the decree-holder against Uttam Chand judgment-debtor. The judgment-debtor raised certain objections against the auction sale, which were accepted by the Executing Court but on decree holder's revision to this Court, the revision was allowed and after setting aside the order of the Executing Court the objection petition filed by the judgment-debtor was dismissed and the auction sale made in favour of the decree-holder in the sum of Rs. 20,000/- was confirmed. The decree-holder had participated in the auction sale in view of the following order passed by the Executing Court under O.21, R.72 of the Civil P.C. (hereinafter referred to as the 'Code'): - "Heard. Affidavit filed by the decree-holder has been seen. The auctioneer should permit the decree-holder to bid at the auction if no one else is prepared to give a bid. If the bid of the decree-holder is accepted, then he may be allowed to set off his decretal amount against 1/4th of the sale price which he may have to deposit at the fall of hammer."

(2.) In view of the aforesaid order the decree-holder did not deposit Rs. 5,000/-, 1/4th sale price on the fall of hammer. Under O.21, R.85 of the Code the decree-holder was to pay the balance 374th of the sale consideration i.e. Rs. 15,000/- before the Court was to close on the 15th day from the sale of the property. The decree-holder did not deposit this amount within the aforesaid prescribed period nor had deposited till the judgment debtor's objections were accepted by the Executing, Court, nor had deposited till the revision was allowed by this Court and the auction sale was confirmed nor deposited the same till 17th Mar. 1982 when the judgment debtor filed objections before the Executing Court under S.151 read with O.21, Rr.84, 85 and 86 of the Code for declaring the auction sale to be null and void in view of the decision of the highest Court of the Land in Mani Lal Mohan Lal Shah v. Sardar Sayed Ahmed Sayed Mohammad, AIR 1954 SC 349 and for a direction to re-auction the land under O.21, R.86 of the Code. The factual position as it obtains today is that the decree-holder has not deposited the balance auction price even till today. However, decree-holder moved the Executing Court on 17th Mar., 1982 praying that the total decretal amount, costs of the suit and interest be adjusted towards the sale price of Rs. 20,000/-. Two days before that, i.e., on 15-3-1982, the decree-holder filed an application before the Executing Court intimating it that he wants to deposit the amount as would be ordered by the Court.

(3.) The Executing Court considered the entire matter and came to the conclusion that the decree-holder's failure to deposit the 3/4th of the sale price, rendered the sale proceedings as a complete nullity as if no sale at all took place in view of Manilal Mohan Lal Shah's case (supra). It took notice of the fact that under O.21, R.72 of the Code, the Executing Court had allowed setoff against 1/4th of the sale price. It further concluded that even if it is assumed for the sake of argument that set-off for the entire decretal amount including costs and interest is allowed to the decree-holder, still some balance was left to be deposited by him because the decree was for Rs. 11,500/-, costs amounting to Rs. 1497.35 and the interest worked out to Rs. 5145.35. On this basis also, it concluded that the sale was a complete nullity and there was no option but to re-sell the property in view of the mandatory provisions of O.21, R.86 of the Code. In coming to the aforesaid conclusion it also relied upon Nichhattar Singh v. Babu Khan, AIR 1972 Punj and Har 204, Siri Bhan v. Jit Singh, AIR 1956 Pepsu 77, Necharuddi Safui v. Ayod AB, AIR 1951 Cal 319. However, the Executing Court found difficulty in declaring the auction sale to be nullity and in ordering fresh auction in view of the fact that the auction sale had been confirmed by this Court and whether the objection regarding the non-deposit of the entire purchase money within time could be entertained after the confirmation of sale. Accordingly, it proposed the following two questions for opinion of this Court and referred the matter under Order XLVI of the Code vide order dated 1st May, 1982 :-