SURENDRA MOHAN SARKAR Vs. MANMATHANATH BANERJI

JUDGEMENT

(1.) This rule is directed against an order of the Court refusing to review an order passed by it in connexion, with an execution sale. Some properties were put up for sale by the Subordinate Judge of Pabna, of which lot No. 1, among other lots, was purchased by the petitioner on 22nd March 1930 for Rs. 670, it being the highest bid. On 24 March 1930 a report by the nazir was placed before the Subordinate Judge for accepting certain bids. The decree-holder thereupon filed a petition saying that lot No. 1 was sold for an inadequate price and expressed his willingness to purchase it for a higher amount. The property was resold and purchased by the decree-holder for Rs. 800. The petitioner's case is that after he purchased the property, he paid the poundage fee and deposited one-fourth of the purchase money and went out of town. When he came back, he found that the property had been resold to the decree-holder on 24th March 1930. On 3 April 1930 the petitioner filed an application for review before the Subordinate Judge. The learned Subordinate Judge, by his order dated 14 April 1930, dismissed the said petition.

(2.) The grounds upon which the judgment of the Court below is based are that the sale does not become complete before it has been accepted by the presiding officer of the Court and further that, in the circumstances of this case, he has been justified in accepting the higher bid of the decree-holder in the interest of the judgment-debtor. The order of the lower Court has been attacked upon two grounds: firstly, that the learned Subordinate Judge had no jurisdiction to resell the property after it was knocked down to the petitioner; and secondly, that if he had the power to do so proper notice ought to have been given to the petitioner.

(3.) As regards the first ground, the provisions of the Code seem to be quite clear that the sale of the property in an auction held by the Court does not become complete before its acceptance by the Court. Under Order 21, Rule 65, 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 and shall be made by public auction. Though the sale may be made by an officer of the Court or by any person appointed in this behalf, the sale is a sale by the Court: the officer of the Court, for instance the nazir or any person empowered by the Court, is simply a ministerial officer appointed to carry out certain duties imposed upon him by the Court. After the sale is held and completed, so far as the bidding is concerned, the matter must be placed before the Court and, under Order 21, Rule 84, on every sale the person declared to be the purchaser shall pay, after such declaration, a deposit of 25 per cent. on the amount of his purchase money to the officer conducting the sale. Accordingly, before such declaration is made, the sale does not become complete and effective and the bidder does not acquire any interest in the property. We are supported in our view by the decision in the case of Jaibahadar Jha v. Matukdhari Jha A.I.R. 1923 Pat. 525, at pp. 552, 553 (2 of Pat.) where Macpherson, J., says as follows: The function of the nazir or other officer appointed by the Court to conduct the auction is of a ministerial character: it he conducts it in presence of the presiding officer, the latter is still in direct charge of it, forthwith declares under Order 21, Rule 84, who the purchaser is and signs the formal order, and the sale is not complete until the declaration has been made and the order signed. Equally, when the auction is (for reasons of convenience) not held in his presence, the presiding officer is still in charge of it and the officer conducting the sale is in no more responsible position than if he were conducting it in the presence of the presiding officer: that the sale may be completed, not only the order of the presiding officer to close the bidding, but also his order under Order 21, Rule 84, formally accepting the bid and declaring the purchaser, is required.