MOHAN LAL Vs. DEVI CHAND NATHU LAL JAWARIA

JUDGEMENT

(1.) FIRM Devichand Nathulal filed a suit in Court of Civil Judge, Udaipur for recovery of Rs. 9866/ - and obtained a decree from that Court against petitioner Mohanlal. In execution of that Decree, the decree -holder firm got attached house of the petitioner situated in village Bhabharana, Salumber Parsola Distt. Udaipur. In execution of the decree, the house of the petitioner was put to auction and after obtaining the permission of the Court, the decree holder also made the bid which was knocked down in his favour for Rs. 16351/ - on 7th January, 1984. The petitioner judgment debtor filed objections before the executing Court stating that auction sale was irregular because the decree -holder and sale -ameen had joined hands. It was alleged that publication of the proclamation under Order 21, Rule 66, C.P.C. was not made according to law. The market value of the house was Rs. 50,000/ - while the auction bid of the decree holder was only to the tune of Rs. 16351/ - and the same was accepted. The application was opposed by the decree -holder. He stated that the judgment debtor had not raised any objection about the valuation of the house at the time the terms and conditions of proclamation sale were settled.

(2.) THE executing Court rejected the objections filed by the judgment debtor by his order dated April 7, 1984. The executing Court stated that in his application under Order 21, Rule 66 of the Code of Civil Procedure the decree -holder had given the value of the property proposed to be got sold in execution of the decree at Rs. 15,000/ - and notice thereof was served on the judgment debtor and he did not raise any objection at that time against the estimated market value put by the decree holder in his application under Order 21, Rule 66, C.P.C. Accordingly the objections filed by the petitioner judgment debtor were dismissed. The petitioner filed an appeal before the District Court which was heard by the Addl. District Judge, the judgment debtor advanced three arguments. The first argument was regarding estimated value of property put by the decree holder in the proclamation sale. Second objection was with regard to non compliance of the provisions of Order 21, Rule 66, C.P.C. is accordance with law. Last objection was that the decree -holder did not deposit 25% of the difference amount remaining after appropriation of Rs. 14,850/ - which was due under the decree against the auction amount of Rs. 16,351/ -. These objections were not raised by the judgment debtor before the Executing Court.

(3.) SO far as the new ground, which was taken by the judgment debtor before the Addl. District Judge in appeal, is concerned, it is quite clear from the impugned order that the decree holder sought for appropriation of Rs. 14,850/ - which had since become due in respect of the principal amount and interest. The decree -holder, who was the auction -purchaser, had deposited Rs. 50D/ - at the time of the auction and the balance amount of Rs. 1001/ -was deposited on 3 -1 -1984. Reference maybe made to the decision of the Bench of this Court in the case of Kanhaiyalal v. Sansmal and Anr. reported in . In this case, it was held that readings Rules 72 and 84 of Order 21 together, it is clear that where a decree holder is permitted to bid at the auction, there is an implied dispensation also that he need not deposit 25 percent of the purchase money unless the sale price is more than the decretal amount. Where the sale price is more than the decretal amount, the decree holder mast deposit the excess up to 25 percent of the purchase money depending upon the excess of the sale price over the decretal amount. In the case of Poonamchand v. Sumerchand reported in 1961 RLW 184, it was held that the use of the words 'subject to the provisions of Section 73' clearly show that he is not entitled to set off the money which is payable to the other decree -holders ratably under Section 73 and thus the amount which is payable to the rival decree holders must be deposited in the court. In the present case, there were no rival decree -holders to the non petitioner firm. In the last, reference may be made to the decision in Smt. Bhanwri Devi v. Sohanlal reported in 1964 RLW 446. It was held in that case that the provision of Rule 84(1) is not mandatory where the purchaser is the decree -holder who has been permitted to bid under Rule 72. Failure to deposit one -fourth of the purchase money by the decree holder on the declaration of the sale by the Sales Amin could, therefore, at the worst only amount to an irregularity which did not prejudice the judgment debtor in any way as the decretal amount which he was entitled to set off under Rule 72(2) was more than one -fourth the purchase money. It was also held that Sub -rule (2) or Rule 84 did not require an express order for dispensation like sub -rule( 1) of Rule 72 as already stated, that the decree -holder had mentioned in his application dated 2nd Jan. 1984 that an amount of Rs. 14850/ - was due to him under the decree and requested that he may be allowed to appropriate the same. The decree -holder deposited an amount of Rs. 500/ -at the time of the auction and the balance amount was deposited on 3rd Jan. 1984. In such circumstances, he had made the requisite compliance as envisaged by the decision in the case of Kanhaiyalal v. Sansmal and Anr. (supra).