UDA Vs. BALU LAL

JUDGEMENT

(1.) These two revisions arise out of a single order passed by the Additional District Judge, Udaipur, on 9th of March, 1951, in two connected appeals.

(2.) In execution of a decree obtained by Kashi Ram against Khushal, the judgment-debtor's property was put up for sale and on the 12th of January, 1951, the Nazir accepted the last bid of Balu Lal amounting to Rs. 6310/-. Balu Lal was also a mortgagee of this property for a sum of Rs. 5200/-. Balu Lal paid one-fourth of the amount of the purchase money after adjusting his mortgage amount to the Nazir and the Nazir made a report to the Munsiff of Rajsamand in whose Court the execution proceedings were being carried on stating the above facts. The Court ordered that the amount of Rs. 277/8/- paid by Balu Lal be deposited in the Court. Some time later on the same day, a petition was presented by Chhagan Lal that he had been making bids at the sale of the property and had just absented himself for about 10 minutes after making a bid for Rs. 6305/- intimating to the Nazir to wait for his return but when he returned he found that the Nazir had knocked down the sale in favour of Balu Lal for Rs. 6310/-. He intimated that he was willing to pay Rs. 6400/- for the property and even higher if the property be sold to him. The Court asked the Nazir to report whereupon the latter stated that Chhagan Lal had made a bid of Rs. 6205/- and thereafter he went away and did not return. He closed the sale at 6 P.M. when the last bid of Rs. 6310/- was made by Balu Lal, and nobody at that time, was willing to make a higher bid. The Court recorded an order that the sale of the property be again conducted on the 13th and 14th of January, 1951. The Nazir complied and made a report on the 15th of January, 1951, that he started sale taking the bid of Rs. 6400/- of Chhagan Lal and no one gave a higher bid and he therefore accepted it. On the same day, that is, 15th of January, 1951, Balu Lal made a petition that he had been lawfully declared to be the purchaser on the 13th of January and that he was ready to deposit the balance of amount of the purchase money after adjustment of his mortgage, which should be accepted, and a certificate of sale be issued in his favour. Khushal, judgment-debtor, had in the meanwhile presented one petition to the Nazir while he was conducting the sale that the sale be stopped as he was prepared to pay the decretal amount on which the Nazir directed him to deposit the amount in Court. Another petition was presented by Chhagan Lal on the 20th of January, 1951, that he was only a 'Benamidar' for Uda who may be considered as the purchaser. The learned Munsiff passed an order on the 25th of January, 1951, upholding the correctness of his order directing re-sale of the pro-perty and accepted Uda as the purchaser of the second sale. The judgmentdebtor's objection was rejected as he had not paid the decretal amount and only wanted time. Against this order, Balu Lal, and Khushal filed separate appeals. The learned Additional District Judge, Udaipur, by his order dated 9th of March, 1951, held that the lower Court was not right in setting aside the first sale made in favour of Balu Lal and he, therefore, quashed the subsequent proceedings. Uda has filed two revisions as there were two appeals pending before the lower Courts.

(3.) It is argued that the order of the Executing Court, dated the 25th of January 1951, was not open to appeal, inasmuch as, at best it was an order under Order 21 Rule 84 when the Court refused to declare Balu Lal to be the purchaser of the property. It was urged that a sale made by the Nazir was not complete until the bid had been accepted by the Court. It was also argued that the appeal was preferred against the order of the Munsiff dated the 25th of January 1951, while no appeal had been preferred against his order of the 13th of January 1951, and, therefore, if the order of the 13th January stood, the appeal against the second order was incompetent. Learned counsel for the opposite party urged that the sale was complete as soon as the Nazir had knocked down the sale in favour of Balu Lal and, as a matter of fact, the Court also accepted him as the purchaser by accepting the deposit of one-fourth of the purchase price and, therefore, the order directing re-sale on the 13th amounted to a setting aside of the sale within the meaning of Order 21, Rule 92, C.P.C., and the purchaser Balu Lal had a right of appeal under the provisions of Order 43, Rule 1 (j) of the Civil Procedure Code, Another point urged by the learned counsel for the petitioner is that the purchaser Balu Lal was not authorised to deduct the amount of the mortgage money from the purchase price and, thereafter, to deposit only one-fourth of the net amount of the price and that the learned Munsiff took this point also into consideration in setting aside the sale as observed by him in his order of the 25th of January 1951.