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Amar Singh and ors. Vs. Bishwanath Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 328 of 1964
Judge
Reported inAIR1972All353
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 72 and 84(2)
AppellantAmar Singh and ors.
RespondentBishwanath Singh
Appellant AdvocateS.K. Verma, Adv.
Respondent AdvocateC.B. Misra, Adv.
DispositionAppeal dismissed
Excerpt:
civil - necessity of permission to make a bid - order 21 rule 84 (2) of code of civil procedure, 1908 - deposit of 25 percent of the purchase money - not necessary for decree holder - also, decree holder can bid without obtaining prior permission of court. - - the fact that the decree-holder was not even asked at the time of the auction to deposit 25 per cent of the purchase money clearly goes to show that the benefit of order xxi, rule 84 (2), c......which was pressed in this appeal was that, as provided under order xxi, rule 84, c.p.c. the decree-holder had to deposit 25 per cent of the purchase money at the fall ofthe hammer and as no such deposit was made by the decree-holder, the sale was invalid.2. order xxi, rule 84 (2) lays down that in case of a decree-holder who is entitled to set off of the purchase money under rule 72, the court may dispense with the requirements of order xxi, rule 84 (1).3. learned counsel for the appellants contended that in order to apply sub-rule (2) of rule 84 of order xxi, it was necessary that the decree-holder should have obtained permission of the executing court that he should be exempted from depositing 25 per cent of the purchase money on the fall of the hammer. in support of his.....
Judgment:

K.N. Srivastava, J.

1. This is an appeal by the judgment-debtors, arising out of an objection under Section 47, C.P.C.

1A. A number of objections were taken by the judgment-debtors before the executing court. The only objection which was pressed in this appeal was that, as provided under Order XXI, Rule 84, C.P.C. the decree-holder had to deposit 25 per cent of the purchase money at the fall ofthe hammer and as no such deposit was made by the decree-holder, the sale was invalid.

2. Order XXI, Rule 84 (2) lays down that in case of a decree-holder who is entitled to set off of the purchase money under Rule 72, the Court may dispense with the requirements of Order XXI, Rule 84 (1).

3. Learned counsel for the appellants contended that in order to apply Sub-rule (2) of Rule 84 of Order XXI, it was necessary that the decree-holder should have obtained permission of the executing court that he should be exempted from depositing 25 per cent of the purchase money on the fall of the hammer. In support of his contention, learned counsel for the appellants relied on a decision of the Andhra Pradesh High Court in S. Pundarikaksharao v. Lingareddi Venkatareddi, AIR 1966 Andh Pra 201. In this case a Single Judge considered a Supreme Court decision in Manilal Mohanlal Shah v. Sardar Sayed Ahmad Sayed Mahmad, AIR 1954 SC 349, and observed that the Supreme Court laid down that it was mandatory for a person other than a decree-holder to follow Rule 84 (1). The Single Judge observed that this observation did not mean that the aforesaid provision was not mandatory for the decree-holder.

4. The law laid down by the Supreme Court in this regard is as follows:

'The provision regarding the deposit of 25 per cent, by the purchaser other than the decree-holder is mandatory as the language of the Rule suggests.'

The words 'other than the decree-holder' has a special significance. The case of the decree-holder was examined by the Supreme Court on the simple ground that Rule 84 (2) provided that the Court may dispense with the requirements of Rule 84 (1) in case of a decree-holder, if he was entitled to set off of the purchase money under Rule 72.

5. Sub-rules (1) and (2) of Rule 84 have to be read in conformity with each other. If in the case of a decree-holder the deposit of 25 per cent of the purchase money is made mandatory then Sub-rule (2) of Rule 84 would become almost nugatory, and, therefore, with profound respect to the Judge who decided the Andhra Pradesh case, AIR 1966 Andh Pra 201, I do not agree with the view that even in the case of a decree-holder the deposit of 25 per cent of the purchase money was mandatory. After going through the above Supreme Court case, no doubt is left that the Supreme Court laid down that the provisions of Order XXI, Rule 84 (2) were mandatory only with regard to a purchaser other than a decree-holder, and not a decree-holder.

6. Learned counsel for the appellant next argued that even if this provisionwas not mandatory in respect of a decree-holder, a decree-holder could claim the benefit of Order XXI, Rule 84 (2), C.P.G. only if prior permission had been obtained by him from the executing court for not depositing the decretal amount. As provided under Order XXI, Rule 72, C. P. C., a decree-holder is not permitted to make a bid or purchase the property without the permission of the Court. This Rule was amended by this Court, and in our State a decree-holder can make a bid without obtaining the prior permission of the Court.

7. The one-fourth of the purchase money was less than the amount of the decree, and, therefore, in my opinion, it was not necessary for the decree-holder to have obtained prior permission of the executing court. The fact that the decree-holder was not even asked at the time of the auction to deposit 25 per cent of the purchase money clearly goes to show that the benefit of Order XXI, Rule 84 (2), C.P.C. was given to him because one-fourth amount of the purchase money was less than the decretal amount, and in case of the sale having not been confirmed on account of the default of the decree-holder, the difference of the said purchase money could have been easily deducted from the decretal amount.

8. In the instant case, the decree-holder was entitled to set off of the purchase money under Order XXI, Rule 72, C.P.C. After going through the provisions of Sub-rules (1) and (2) of Rule 84 of Order XXI, C.P.C. I am of the opinion that it was not necessary for the decree-holder to have obtained prior permission, specially when according to the Amended Order XXI, Rule 72, C.P.C. a decree-holder is permitted to make a bid at the auction sale without obtaining the prior permission of the executing court. In this view of the matter, the above argument has no force in it.

9. No other point was pressed in this appeal.

10. In the result, the appeal fails. It is hereby dismissed with costs. The stay order is discharged.


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