SATISH CHOPRA Vs. SURAJ PRAKASH

JUDGEMENT

(1.) THE present revision petition has been filed against the order passed by the Additional Civil Judge, (Sr. Division), karnal, vide which application moved by the auction-purchaser under Section 148 of CPC for extension of time to deposit the balance sale consideration has been allowed by relying upon the judgment passed by the Madras High Court in the case of Ashok Kumar media v. Balaji Builders and another, AIR 1990 Madras 232 as well as the judgment of the Hon'ble Supreme Court in the case of periyakkal v. Dakshyani, AIR 1983 SC 428 wherein the Hon'ble Supreme Court considered the powers of the Court under Section 148, CPC to grant extension of time.

(2.) LEARNED counsel for the petitioners has challenged this order primarily on the ground that the provisions of Order 21, Rule 85, CPC are mandatory in nature and on expiry of 15 days from the date of auction if the payment is not paid the sale is to be treated as a nullity.

(3.) LEARNED counsel for the petitioners contended that the learned Executing Court has wrongly placed reliance upon the judgment of Hon'ble Madras High Court in the case of Ashok Kumar Media's (supra), as it is contrary to the law Lald down by the hon'ble Supreme Court as well as by this court. In support of his contention, he has placed reliance upon a judgment of the hon'ble Supreme Court reported as Balram son of Bhasa Ram v. Ham Singh and others, AIR 1996 Supreme Court 2781, to contend that on failure to deposit full amount of sale price within time stipulated by Order 21, Rule 85, cpc the sale becomes nullity. A similar view was taken by this Court in the case of Fauja Singh v. Mohinder singh, 2003 (3) CCC 190. To controvert the finding recorded by the learned Executing court, learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Mohinder Singh v. Additional district Judge, Sangrur, 1991 (2) Punjab law Reporter 334, wherein this Court was pleased to lay down that the provisions of order 21, Rule 85, CPC are mandatory in nature and the Court cannot grant extension of time for payment of purchase money. He has also placed reliance on the judgment of this Court in the case of Nichhattar Singh and others v. Babu Khan and others, AIR 1972 Pandh 204. In the said case, the matter similar to the one as in this case had arisen where the learned Court had granted extension of time to deposit purchase money, however, this Court set aside the sale by holding that the provisions of Order 21, Rule 85, CPC are mandatory in nature and that the extension of time was contrary to the law Lald down by this Court. In view of the law referred to above, the impugned order cannot be sustained and is accordingly set aside. However, it needs to be noticed that at the time of issuing notice of motion, this court was pleased to pass the following order dated 26-10-2004 : "learned counsel contends that the Executing Court before extending the time for making the payment of 75% to the auction-purchaser, a notice should have been issued to the petitioners (Judgment-Debtor) but the same has not been done. Then contends that even otherwise if the sale price is not deposited within the stipulated period the sale itself becomes a nullity. Further contends that the petitioners are now ready to deposit the entire decretal amount before the concerned Court in one go. In support of his contention, learned counsel has relied upon air 1966 SC 2781. Notice of motion to respondent Nos. 1 and 2 only for 9-11-2004. Dasti. Learned counsel for the petitioners, at this stage, contends that warrants of possession have already been issued against the petitioners by the Executing Court on 20-10-2004. Learned counsel for the petitioners places on record the certified copy of the said order which is taken on record. In the meantime, dispossession of the petitioners from the property in question is stayed. "