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Kanhaiyalal Vs. Sansmal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberEx. First Appeal No. 2 of 1954
Judge
Reported inAIR1956Raj18
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 72 and 84
AppellantKanhaiyalal
RespondentSansmal and anr.
Appellant Advocate Sohannath, Adv.
Respondent Advocate Haraklal, Adv.
DispositionAppeal allowed
Cases ReferredBhag Chand v. Mt. Najab Sultan
Excerpt:
.....the reliefs the court will take these facts into consideration. - it may be noted that sub-rule (2) of rule 84 does not require an express order lor dispensation, like sub-rule (1) of rule 72 which requires express permission to bid......of the civil judge sojat, setting: aside a sale under order 21, rule 84 on the ground that the decree-holder auction purchaser had not deposited 25 per cent, of the purchase money as required by order 21, rule 84 (1), c. p. c.2. the facts are that certain property was ordered to be sold and 25-5-1953, was fixed for the sale. on that day, the decree-holder applied to the executing court for permission to bid at the auction, and also prayed that the amount realized by sale be set-off towards his decree, the court passed an order on this application in the following terms:,'the decree-holder is permitted to bid at the sale'.nothing was said about the other prayer made by the decree-holder namely that the purchase money be set-off towards his decree.3. the sale took place on the 25th of.....
Judgment:

Wanchoo, C.J.

1. This is an appeal by Kanhaiyalal decree-holder against the order of the Civil Judge Sojat, setting: aside a sale under Order 21, Rule 84 on the ground that the decree-holder auction purchaser had not deposited 25 per cent, of the purchase money as required by Order 21, Rule 84 (1), C. P. C.

2. The facts are that certain property was ordered to be sold and 25-5-1953, was fixed for the sale. On that day, the decree-holder applied to the executing court for permission to bid at the auction, and also prayed that the amount realized by sale be set-off towards his decree, the court passed an order on this application in the following terms:,

'The decree-holder is permitted to bid at the sale'.

Nothing was said about the other prayer made by the decree-holder namely that the purchase money be set-off towards his decree.

3. The sale took place on the 25th of May, and the decree-holder's' bid was the highest. The sale was apparently knocked down in his favour, but he did not deposit 25 per cent, of the purchase-money as required by Rule 84 (1) of Order 21, C. P. C.

Thereafter, certain objections were made by the judgment-debtor on 29-5-1953. It Is not necessary to refer in detail to those objections.

It is enough to say that when the matter came before the court on 17-11-1953, it set aside the sale on the ground that the decree-holder auction-purchaser had not deposited 25 per cent, of the purchase-money within time, ft did not decide any of the objections raised in the application of 29-5-1953, but fixed 25-1-1954 for hearing those objections.

Thereafter there was an appeal to this Court, and the objections of 29-5-1953, are, we understand, sli.Il undisposed of.

4. The point raised by the present appeal is whether in view of the provisions of Order 21, Rules 72 and 84 a decree-holder, who has been permitted to bid, must deposit 25 per cent.' of the purchase-money at once, and if he fails to do so, the sale can be set aside. The relevant portion of Order 21, Rule 72 is as follows;

(1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.

(2) Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of Section 73, 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'.

Order 21, Rule 84 (1) provides that the auction-purchaser shall forthwith deposit 25 per cent, on the amount of his purchase-money with 'the officer or ether person conducting the sale, and in default of such deposit, the property shall forthwith be resold. Then comes Rule 84 (2) which is as follows:

'Where the decree-holder ^s the purchaser and is entitled to set-off the purchase-money under Rule 72, the Court may dispense with the requirements of this rule'.

5. It is clear therefore that under Rule 72, a decree-holder is entitled to set-off the purchase-money against the amount of his decree. The order for set-off has naturally to be made by the court after it is reported to the court that the decree-holder has purchased the property in pursuance of the permission granted under Sub-rule (1) of Rule 72.

Similarly Sub-rule (2) of Rule 84 provides that the court may dispense with the requirements of Sub-rule (1) where the decree-holder is the purchaser, and is entitled to set-off.

6. Reading these two rules together, it seems to us plain common sense that where a decree-holder is permitted to bid at an auction, there is an implied dispensation also that he need not deposit 25 per cent of the purchase money unless the sale price is more than the decretal amount. Where the sale price is more than the decretal amount, the decree-holder must deposit the excess up to 25 per cent, of the purchase money, depending upon the excess of the sale price over the decretal amount.

There is, in our opinion, no sense in insisting upon the decree-holder depositing 25 per cent of the purchase money, when the purchase money is less than or only equal to' the decretal amount.

We are, of course, not considering a case where there is going to be rateable distribution under the provisions of Section 73, for in such a case different considerations apply, and even if the decree-holder is the auction purchaser, he must deposit 25 per cent of the purchase money.

But where considerations of Section 73 do not apply, the decree-holder is bound to be allowed a set-off by the court to the extent of his decree and in such a case when the court permits him to bid, there must, in our opinion, be an implied permission to dispense with the requirement of deposit of 25 per cent of the purchase-money under Rule 84(1), subject, of course, to the deposit being necessary as already explained above in case the purchase money is greater than the decretal amount.

7. In this case, the purchase-money was, less than the decretal amount, and there was no question of rateable distribution. Therefore, the decree-holder would be entitled to set-off under Rule 72(2) immediately he makes an application to this effect to the Court.

In these circumstances, we are of opinion that it was not necessary for the decree-holder to deposit 25 per cent of the purchase money under Rule 84(1), for the permission granted to him to bid must also be impliedly taken to dispense with the necessity of the deposit of 25 per cent, of the purchase money.

8. Our attention has been drawn to the fact that the decree-holder had made two prayers m his application of 25-5-1953, namely (1) that he may be permitted to bid, & (2) that he may be allowed a set-off, but that the court only allowed the first prayer, and did not say anything on the question of set-off. It is submitted that because the court did not say anything on the second prayer, it must be presumed that the court was refusing the set-off. We are of opinion that this is hot the right inference.

The comrt would be in a proper position to pass a proper order regarding the set-off when it knows the amount of the purchase-money; but from the very fact that it permits a decree-holder to bid, it must be presumed that it was impliedly permitting, him to dispense with the deposit of 25 per cent of the purchase money under the conditions which we have mentioned above.

It may be noted that Sub-rule (2) of Rule 84 does not require an express order lor dispensation, like Sub-rule (1) of Rule 72 which requires express permission to bid. Therefore, an order for dispensation under Sub-rule (2) of Rule 84 may be implied whenever a decree-holder is permitted to bid subject to the conditions, which we have mentioned above; otherwise there is no sense in asking the decree-holder to deposit 25 per cent of the purchase money supposing that the purchase money is not more than the decretal amount and then paying it back to him under Rule 72(2).

9. We may in this connection refer to --'Mathura Das Prabhu Dayal v. Brij Rani', AIR 1929 Lah 492 (A) in support of the view that we have 'taken. Learned counsel for the respondent referred to two cases in support of the view taken by che court below, namely -- 'Bhag Chand v. Mt. Najab Sultan', AIR 1934 Pesh 25 (B) and -- 'Ratanlal y. Bakhtawar Mal, AIR 1951 Ajmer 103(2) (C).

It is enough to say that we accept the view taken by the Lahore High Court as that appears to us to be both correct and in accordance with common sense. The order of the lower court must therefore be set aside.

10. Learned counsel for the judgment-debtor respondent wanted to raise certain other points before us, namely that no notice had been issued under Order 21 Rule 22, that no proceedings had been taken under Order 21, Rule 16, and that Kanhaiyalal could not be called the decree-holder. These are some of, the points which have been raised in the objection application, dated 29-5-1953.

That application has not yet been decided, and we are not deciding any part of those objections. It will be open to the court below to decide those objections on the merits when the case goes back to it. We hope that the executing court will decide the objections all at once, so that parties may not have to come to this Court again and again as each point is decided by it.

11. We, therefore, allow the appeal, set aside the order of the court below dated 17-11-1953, setting aside the sale, and direct that the objections of the judgment-debtor in his application elated 29-5-1953, be now decided on the merits. Costs of this Court will abide the final result of the objections raised by the judgment-debtor.


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