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Dharam Rao Vs. Shankarappa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. No. 707 of 1980
Judge
Reported inAIR1986Kant10; 1985(1)KarLJ245
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 85
AppellantDharam Rao
RespondentShankarappa and ors.
Appellant AdvocateShivraj Patil, Adv.
Respondent AdvocateV.S. Kulkarni, Adv.
Excerpt:
.....85 clearly says that while calculating the amount to be so paid into court, the purchaser shall have the advantage of any set off which he may be entitled under r. ' therefore, under these circumstances, as the decree-holder has failed to, deposit the remaining amount within the statutory period of 15 days, the sale automatically stands cancelled......gulbarga, in misc. case no. 10 of 1971 setting aside the sale. 2. it is undisputed that the decree-holder after obtaining the decree sued out the execution and brought the property of the judgment-debtor to sale. it is undisputed that the decree holder with the permission of the court bid the property for rs. 1,700/-. it is also undisputed that the decree amount is rs. 600/-.3. the sale was held on 9-1-1970. the amount was deposited on 12-3-1970. the sale was confirmed and the decree-holder was put in possession of the property also. 4. thereafter the judgment-debtor filed the present miscellaneous case before the munsiff stating that the purchase money had not been deposited within 15 days as required by o.21, r. 84, c.p.c. the sale was null and void and that the court can only.....
Judgment:
ORDER

1. This is a decree-holder's revision against the order dt. 12-7-1979 passed by the Additional District Judge, Gulbarga, in Miscellaneous Appeal No. 29 of 1979 confirming the judgment dt. 22-10-1975 passed by the principal Munsiff Gulbarga, in Misc. Case No. 10 of 1971 setting aside the sale.

2. It is undisputed that the decree-holder after obtaining the decree sued out the execution and brought the property of the judgment-debtor to sale. It is undisputed that the decree holder with the permission of the Court bid the property for Rs. 1,700/-. It is also undisputed that the decree amount is Rs. 600/-.

3. The sale was held on 9-1-1970. The amount was deposited on 12-3-1970. The sale was confirmed and the decree-holder was put in possession of the property also.

4. Thereafter the judgment-debtor filed the present Miscellaneous Case before the Munsiff stating that the purchase money had not been deposited within 15 days as required by O.21, R. 84, C.P.C. The sale was null and void and that the court can only order resale of the property.

5. The said argument appealed to the Munsiff and he set aside the sale. On an appeal by the decree-holder the District Judge also dismissed the appeal. Hence the revision.

6. Order 21, R. 72, C.P.C. says that when a decree-holder himself purchases with the permission of the court, the purchase money and the amount due on the decree may be set off against one another, and the court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly. So R. 72 of O.21, C.P.C. only prescribes that if the decree-holder wants to bid himself, he should obtain the permission of the court and if he becomes a successful bidder the purchase money and the amount due on the decree may be set off against one another.

7. Order 21, R. 84, C.P.C. says as: -

'(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five percent on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.

(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money tinder R. 72, the Court may dispense with the requirements of this rule.'

Order 21, R. 84(2), C.P.C. makes an exception in the case of a decree-holder auction purchaser. It only says that the court may dispense with the requirement of deposit of 25 per cent if the decree-holder is the purchaser and is entitled to set off the purchase money. The decree-holder can claim set off only to the extent of decree amount if he has bid the property for more than the decree amount.

8. Order 21, R. 85 C.P.C. says as: -

'The full amount of purchase-money payable shall be paid by the. purchaser into Court before the Court closes on the fifteenth day from the sale of the property :

Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under R. 72.'

Rule 85 clearly says that while calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set off which he may be entitled under R. 72. There for, R. 85 of O.21, C.P.C. applies equally also to the decree-holder. It is a mandatory provision even though the auction purchaser might be the decree-bolder. What R. 85 of O.21, C.P.Q. prescribes is that if the decree holder is entitled to any set-off, he must deposit the remaining amount within 15 days from the date of sale. But it does not enable him to deposit the money as and when he pleases. The teamed counsel Shri Shivraj Patil placed before me the decision in M. Panchaksharappa v. Shivayogeshwara Cotton Press Co., (1973) 1 Mys LJ 1 : (AIR 1973 Mys 135). It reads as : -

'In the case of a decree-holder auction purchaser the provision of O.21 R. 84(1) C.P.C. cannot be construed as mandatory. Where an order is passed under O.21, R. 72(l) permitting the decree-holder to offer bid at the auction sale, in the absence of anything to the contrary, the effect of U. 21, R. 72(2) is to dispense by necessary implication with the requirement of O.21, R. 84(l) that 25 per cent of the purchase money should be deposited on the date of sale. Therefore, the sale held is not a nullity merely because the deposit was not made.'

This ruling interprets R. 84 of O.21, C.P.C. It does not consider the effect of R. 85 at all. As already indicated above, R. 84(2) of O.21, C.P.C. makes an exception in the case of a decree-holder and therefore, it is not mandatory. As already stated above, R. 85 applies not only to a stranger purchaser but it also equally applies to the decree holder-auction-purchaser. Therefore, the deposit not having been made within the statutory limit of 15 days, the court is bound to order resale, because the sale already conducted being in violation of R. 85 is null and void. The learned author Shri Mulla in his C.P.C. 13th Edition on page 1157 has stated as : -

'While the Court has a discretion under the rule to refund the deposit in whole or in part it has no discretion as regards resale of the property, which is obligatory. The Allahabad high Court has held that on default the auction purchase stands automatically cancelled because the Court in such a case has no option but to order a resale. It is obligatory on the Court to order a re-sale and the Court has no jurisdiction to extend time for payment.'

Therefore, under these circumstances, as the decree-holder has failed to, deposit the remaining amount within the statutory period of 15 days, the sale automatically stands cancelled. It is not necessary either for the judgment debtor or for any one even to apply under O.21, R. 90, C.P.C. to make an application for setting a side the sale. Order 21 R. 90, C.P.C. would come into play only when the sale is vitiated by irregularity or fraud in publishing or conducting the sale.

9. Therefore, the orders passed by the court below need no interference The revision is dismissed .Now the property will have to be resold as required by O.21,R.86,C.P.C.

10. No costs in this revision.

11. Revision dismissed.


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