P HAJEE BATCHA SAHEB Vs. MMAHOMED EBRAHIM SAHEB

JUDGEMENT

(1.) The facts of this case are as follows: A certain property was sold by Court-auction in three lots on 4 September, 1922. The first lot was put up and knocked down to respondent's bid for Rs. 1,850. The 25 per cent, deposit was not paid at once but the sale of the second lot was1 proceeded with. While that was going on, the respondent wished to retract his bid for the first lot on the ground that he had been bidding under a mistake. The officer conducting the sale refused to allow him to do so and this order was confirmed by the Court on a petition put in two days later, namely, on the 6 of September, 1922. The first lot was again put up for sale after lots 2 and 3 but no bids were secured. The decree-holder then put in an execution (with which we are now concerned), dated 27 November, 1922. He asked (1) that the respondent should be directed to pay the purchase money of Rs. 1,850 into Court, (2) that in default of, such payment the said lot No. 1 should be ordered to be re-sold, and (3) that any deficit on such resale should be recovered from the respondent by issue of warrant of arrest. The District Judge has dismissed this petition on the ground that the property should have been re-sold forthwith on failure to deposit the 25 per cent, of the purchase money, and that therefore the petitioner should put in a fresh execution petition for the sale of the property. When the respondent failed to make the deposit, the officer conducting the sale put up lot No. I after lots Nos. 2 and 3 had been sold. No bids were received and the matter was reported to the Court. The question that arises now is whether there has been a re-sale of the property as directed in Order 21, Rule 84. It is not disputed that the property was put up for sale and that if there had been any bids it would have been sold, but it is contended for the respondent that inasmuch as no bids were received the property cannot be deemed to have been re-sold. The point is not free from doubt, for in the strict meaning of the word " re-sold " it would appear that there must be an actual sale of the property, but what is to happen if it is impossible to resell the property? Under Order 21, Rule 71, any deficiency of price which may happen on a re-sale by reason of the purchaser's default shall be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money. If the property had realised one rupee, the defaulting purchaser would have been liable to pay the balance of Rs. 1,849. in the event of there being no bids at all, is he to escape this liability? It is certainly, not the in- tention of the Act that he should escape scot-free in such circumstances, and it only remains to be determined whether the words " shall forthwith be put up for sale " were complied with. It is undoubted that on principle the words should have this meaning and I should feel inclined to hold that the provisions of the section had been complied with when the property is put up for resale.

(2.) In the present case, however, I think this appeal may be decided on other grounds. The appellant had put in an alternative prayer that the property should again be resold. When the re-sale failed for want of bids, the conducting officer should have adjourned the; sale and continued it until he had obtained a bid. His petition, therefore, to resell the property should have been ordered.

(3.) The objection is taken that if a re-sale is now ordered more than two years after the original sale, the conditions of the section that the re-sale should be held forth with would not be complied with, but it must be remembered that a re-sale was held and failed and that the appellant within a reasonable time put in an application to hold the sale again. The fact that the prayer was refused by the District Court with the result such re-sale has been postponed for two years can hardly affect the question. An application was made within a reasonable time and we must take the date of the application as being the date on which the fresh re-sale should have taken place. Although then I should be prepared to say that the respondent was liable to make good the deficit of Rs. 1,850 yet, in view of what has taken place, 1 think it is advisable in the interests of justice that the property should again be resold and if there is any deficit it should be recovered from the respondent. The appeal is accordingly allowed and the property directed to be resold at once.