PRAG DAS Vs. BENI PRASAD JAGGU LAL

JUDGEMENT

(1.) This is an appeal from an order passed by the learned Additional Subordinate Judge of Allahabad ordering the appellant to pay the difference between the prices fetched by certain property sold in execution of decree and purchased by the appellant on two occasions. The appellant had obtained a decree against the respondent Beni Prasad for a certain sum of money, and in execution thereof had the latter's house put to sale on 21 February 1934. His own bid of Rs. 1,450 was the highest. The auction-purchaser (decree-holder) was not, however, able to deposit the one-fourth of the purchase money there and then but requested the sale officer to allow him half an hour for the deposit of that sum. The sale officer acceded to this request, but the appellant did not return. The sale officer, who was the Court amin, proceeded to the appellant's house and demanded one-fourth of the price. The appellant failed to deposit it and the matter was reported to the Court, before whom the case was laid for orders, on 24 February 1934, when it directed a re-sale of the house after a fresh proclamation. The house was eventually resold on 22 August, 1934 after a fresh proclamation was duly issued. The appellant again was the highest bidder, but on this occasion his bid was only Rs. 20, which was accepted. Subsequently the judgment-debtor made an application under Order 21, Rule 71, Civil P.C., for recovery from the appellant of the difference between Rs. 1,450, for which he had purchased the house on 21st February 1934, and Rs. 20, the price fetched by the property on re-sale. The appellant contested his liability to make good the loss on the ground that the re- sale did not take place "forthwith", as required by Order 21, Rule 84, Civil P.C., and that consequently Rule 71 did not apply. The lower Court overruled the appellant's objection and ordered him to pay the difference between the two sums already referred to. The learned Judge pointed out that the delay which occurred in the re-sale of the property was due entirely to the appellant's own default, as he failed to deposit the necessary process fee.

(2.) It is contended in this Court that Order 21, Rule 71, Civil P.C., does not apply, unless on default of the purchaser the property was re-sold forthwith, as required by Rule 84. It is also contended that in the circumstances of this case it must be held that the re-sale did not take place forthwith. Reliance was placed on Amir Began Vs. The Bank of Upper India Ltd. (1908) 30 All. 273, in which it was held with reference to the corresponding provisions contained in the Civil Procedure Code of 1882 that, if the auction-purchaser fails to make the initial deposit of 25 per cent, no bargain of sale could be considered to have been completed and that the subsequent sale cannot be considered to be a re-sale . This case has been declared to be no longer good law by a subsequent Full Bench ruling of this Court : Sita Ram V/s. Janki Ram A.I.R. 1922 All. 200. The altered phraseology of Rule 84 in one respect was held to indicate almost conclusively that a second sale on the failure of the auction-purchaser to pay 25 per cent, is re-sale, a term which has been used in Rule 85; whereas the second sale under the corresponding provision of the Code of 1882 was termed as a sale . I hold, in view of Sita Ram V/s. Janki Ram A.I.R. 1922 All. 200, that the sale which took place on 2 August, 1934 was a re-sale within I the meaning of Rule 84, Order 21, Civil P.C.

(3.) The more important question is whether Rule 71 is subject to the condition that the re-sale should have taken place forthwith as directed by Rule 84. There is some authority in support of this view. A learned Single Judge of the Lahore High Court held in Hari Singh V/s. Sanwan Mal-Gopi Chand A.I.R. 1929 Lah. 744 that, if a re-sale does not take place forthwith, the defaulting auction-purchaser is not liable for the deficiency in the price fetched on re-sale of the property. Similarly, a Single Judge of the late Court of the Oudh Judicial Commissioner held in Angnu v. Mohammand Sajjad Ali Khan , that the result contemplated by Rule 71 is a sale according to law, and that if the property was not sold forthwith, the sale cannot be considered to be such as will attract the application of Rule 71. With great respect I am unable to accept the view which has been taken in these cases. It seems to me that Rule 71, which occurs under a different heading, is not dependent upon re-sale of the property strictly according to Rule 84. Rule 71 clearly I provides that: Any deficiency of price which may happen on a re-sale by reason of the purchaser's default and all expenses attending such re-sale, shall...at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser....