Gokal Chand Mital, J.
1. Ram Singh decree-holder was the highest bidder in a Court auction sale held on 20th Nov., 1978 which was conducted in pursuance of a money decree for Rs. 11,500/- with costs and interest at the rate of 6 per cent per annum, obtained by the decree-holder against Uttam Chand judgment-debtor. The judgment-debtor raised certain objections against the auction sale, which were accepted by the Executing Court but on decree holder's revision to this Court, the revision was allowed and after setting aside the order of the Executing Court the objection petition filed by the judgment-debtor was dismissed and the auction sale made in favour of the decree-holder in the sum of Rs. 20,000/- was confirmed. The decree-holder had participated in the auction sale in view of the following order passed by the Executing Court under O. 21, R. 72 of the Civil P. C. (hereinafter referred to as the 'Code'):--
'Heard. Affidavit filed by the decree-holder has been seen. The auctioneer should permit the decree-holder to bid at the auction if no one else is prepared to give a bid. If the bid of the decree-holder is accepted, then he may be allowed to set off his decretal amount against 1/4th of the sale price which he may have to deposit at the fall of hammer'.
2. In view of the aforesaid order the decree-holder did not deposit Rs. 5,000/-, 1/4th sale price on the fall of hammer. Under O. 21, R. 85 of the Code the decree-holder was to pay the balance 3/4th of the sale consideration i.e. Rs. 15,000/- before the Court was to close on the 15th day from the sale of the property. The decree-holder did not deposit this amount within the aforesaid prescribed period nor had deposited till the judgment debtor's objections were accepted by the Executing Court, nor had deposited till the revision was allowed by this Court and the auction sale was confirmed nor deposited the same till 17th Mar. 1982 when the judgment debtor filed objections before the Executing Court under S. 151 read with O. 21, Rr. 84, 85 and 86 of the Code for declaring the auction sale to be null and void in view of the decision of the highest Court of the Land in Mani Lal Mohan Lal Shah v. Sardar Sayed Ahmed Sayed Mohammad, Air 1954 SC 349 and for a direction to re-auction the land under O. 21, R. 86 of the Code. The factual position as it obtains today is that the decree-holder has not deposited the balance auction price even till today. However, decree-holder moved the Executing Court on 17th Mar., 1982 praying that the total decretal amount, costs of the suit and interest be adjusted towards the sale price of Rs. 20,000/-. Two days before that, i.e., on 15-3-1982, the decree-holder filed an application before the Executing Court intimating it that he want to deposit the amount as would be ordered by the Court.
3. The Executing Court considered the entire matter and came to the conclusion that the decree-holder's failure to deposit the 3/4th of the sale price, rendered the sale proceedings as a complete nullity as if no sale at all took place in view of Manilal Mohan Lal Shah's case (supra). It took notice of the fact that under O. 21, R. 72 of the Code, the Executing Court had allowed setoff against 1/4th of the sale price. It further concluded that even if it is assumed for the sake of argument that set-off for the entire decretal amount including costs and interest is allowed to the decree-holder, still some balance was left to be deposited by him because the decree was for Rs. 11,500/- costs amounting to Rs. 1497.35 and the interest worked out to Rs. 5145.35. On this basis also, it concluded that the sale was a complete nullity and there was no option but to re-sell the property in view of the mandatory provisions of O. 21, r. 86 of the Code. In coming to the aforesaid conclusion it also relied upon Nichhattar Singh v. Babu Khan, AIR 1972 Punj and Har 204, Siri Bhan v. Jit Singh, AIRR 1956 Pepsu 77, Necharuddi Safui v. Ayod Ali, Air 1951 Cal 319. However, the Executing Court found difficulty in declaring the auction sale to be nullity and in ordering fresh auction in view of the fact that the auction sale had been confirmed by this Court and whether the objection regarding the non-deposit of the entire purchase money within time could be entertained after the confirmation of sale. Accordingly, it proposed the following two questions for opinion of this Court and referred the matter under Order XLVI of the Code vide order dated Ist May, 1982:--
'1) Can the sale in execution of the decree confirmed by the Hon'ble High Court be set aside by the trial Court under S. 47 of the Civil P. C. ?
2) Can the objection regarding non-deposit of purchase money within time be entertained after the confirmation of sale?'
4. Initially, D. S. Tewatia, J. before whom reference came up for decision was of the opinion that the questions were of considerable legal importance and should be decided by a larger Bench. This is how, the matter has been placed before us.
5. Notice of the reference was issued to both the sides. Only the decree-holder is represented before us and none has appeared on behalf of the judgment-debtor in spite of service. Accordingly, we proceed to decide this reference ex parte against the judgment debtor.
6. After hearing the learned counsel for the decree-holder and on perusal of the matter we are of the opinion that on the peculiar facts of this case we are in agreement with the findings recorded by the Executing Court that the auction sale held on 20th Nov. 1978 was a complete nullity and it has to be deemed that upon non-compliance with the provisions of O. 21, R. 85 of the Code as if there was no sale at all in view of Manilal Mohan Lal Singh's Case (Air 1954 SC 349) (supra). In the aforesaid case the provisions of R. 86 of the Code were kept in view R. 86 of O. 21 of the Code provides that in the event of a default the Court is bound to re-sell the property. Therefore, we are in agreement with the Court below that it was a case where the property deserved to be re-sold.
7. Adverting to the first question, we find that there is no precedent on the point. We did not have the advantage of hearing arguments on behalf of the judgment-debtor since appearance has not been put on his behalf. Therefore, on peculiar facts of this case we permit the Executing Court to set aside the sale confirmed by this Court and to re-sell the property under O. 21, R. 86 of the Code in accordance with law. However, if the judgment-debtor deposits the entire decretal amount along with costs and interest before the property is sold, then the property may not be sold, then the property may not be sold. In this case the aforesaid diction would save the purpose and we express no opinion on the first question as an abstract question of law. Till opinion is expressed by this Court in some other case it will suffice to say that whenever a similar situation arises before the Executing Court, it may refer the matter for opinion of this Court as has been done in this case.
8. Adverting to the second question, it was for the Executing Court to see whether the provisions of O. 21, Rr. 84 and 85 of the Code have been complied with or not, even if the judgment-debtor could not bring these to the notice of the Court. In Nichhattar Singh's case (AIR 1972 Punj & Har 204) (supra) it was laid down that if provisions of O. 21, R. 85 of the Code are not complied with, the sale proceedings become a nullity and the Court is bound to put the property to re-sale under rule 86 of the Code irrespective of the fact that no application has been made by any party to the proceedings to challenge the sale. In Kailash Nath Mehta v. State of Punjab, (1982) 84 Pun LR 71. it was held that once there is violation of provisions of O. 21 R. 85 of the Code the sale becomes non est and void and there is no necessity of challenging the sale nor can there be any question that the objections filed to impugn the sale were time barred.
9. On behalf of the decree-holder, who is the auction purchaser, it was argued by Shri Jagjit Singh, Senior Advocate that the aforesaid two decisions would not be laying down correct law in view of Merla Ramanna v. Nallaparaju, Air 1956 SC 87. The facts of that case were entirely different. There the mortgage decree authorised the sale of the mortgagee rights and not the lands which were the subject matter of the mortgage. The sale of land was held to be void. When the judgment-debtor applied to the Executing Court to get possession of the land on the ground that the sale of land was void, the opposite side raised an objection that the application was filed beyond 30 days and, therefore, was time barred. On these facts it was held that the application was within three years of date of dispossession and, therefore, it was within limitation. The order of the High Court confirming the sale was passed on 17-12-1981 and the judgment-debtor filed objections before the Executing Court on 17-3-1982 bringing to its notice that the provisions of O. 21, R. 85 of the Code had not been complied with by the decree holder, who was the auction purchaser, and, therefore, the sale was null and void and the property had to be re-sold. In view of the aforesaid Supreme Court decision in Merla Ramanna's case, the starting point of limitation for a void sale would be when the judgment debtor is dispossessed from the sold property. If the judgment debtor was in possession of the property on 17-12-1981 when the sale was confirmed by this Court, or continued to be in possession till he filed objections on 17-3-1982, the limitation would not be deemed to have started against him. Assuming that the judgment debtor was already out of possession, then the starting point of limitation would be 17-12-1981 when the sale was confirmed. The objection petition by the judgment debtor was filed within three years of the aforesaid date and, therefore, the Supreme Court decision in Merla Ramanna's case (supra) in no way goes against the judgment debtor.
10. The matter may be looked at from another angle. In Merla Ramanna's case (supra) the sale was confirmed on 26-6-1936 and possession was taken on 15-12-1936. The limitation was counted from the date of taking possession. Hence if sale is void the objections can be entertained even after confirmation of sale. Accordingly, we answer the second question in the affirmative that regarding void sales, objections can be entertained even after the confirmation of the sale.
11. Copy of this order be sent to the Executing Court for proceeding further in accordance with law and subject to the observations made in the order. There will be no costs in these proceedings.
D.S. Tewatia, J.
12. I agree.
13. Order accordingly.