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Mst. Magi and ors. Vs. Babulal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtRajasthan High Court
Decided On
Case NumberCivil Engineering Second Appeal No. 8 of 1957
Judge
Reported inAIR1959Raj135
ActsLimitation Act, 1908 - Schedule - Articles 166 and 181; Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 84 and 85
AppellantMst. Magi and ors.
RespondentBabulal and ors.
Appellant Advocate Manak Mal, Adv.
Respondent Advocate B.K. Chohan, Adv.
DispositionAppeal allowed
Cases ReferredMerla Ramanna v. Nallapa
Excerpt:
- .....their lordships of the supreme court, they have held in unambiguous terms that non-deposit of the sale money in accordance with rules 84 and 85 of order 21 renders the sale a nullity. it was observed:there was default in depositing 25 per cent of the purchase money and further there was no payment of the full amount of the purchase money within fifteen days from the date of the sale. both the deposit & the payment of the purchase money being mandatory under the combined effect of rules 84 & 85 the court has the discretion to forfeit the deposit but it was bound to re-sell the property with the result that on default the purchaser forfeited all claim to the property. these provisions leave no doubt that unless the deposit and the payment are made as required by the mandatory provisions.....
Judgment:

Jagat Narayan, J.

1. This execution second appeal has been referred to this Bench by a learned Single Judge. The facts leading to it are briefly these. Mangilal and Tri-bhuwanlal obtained a money decree for Rs. 630/-against Sadu Ram. In execution of this decree a shop belonging to the judgment-debtor was attached and was sold at a court sale held on 5th, 6th and 7th January 1954. The highest bid was of Babu Lal which was accepted by the executing court on 9-1-1954.

One-fourth of the purchase money was however deposited on 21-1-1954 and the balance on 15-2-1954. The sale was confirmed on 15-5-1954 and sale certificate was issued on 31-8-1954. Before possession was delivered an objection was filed by the wife and sons of the judgment-debtor on 8-10-1954. Objections of the nature contemplated in Rules 72, 73, 84 and 85 of Order 21 were taken by them. The judgment-debtor himself did not come forward to raise any objection at that stage. These objections were dismissed on 26-8-54. On 13-1-56 the judgment-debtor filed an application for setting aside the sale on the ground that it was a nullity as there was non-compliance of the mandatory provisions contained in Rules 84 and 85 of Order 21. On this application the executing court set aside the sale.

Babu Lal auction purchaser appealed to the District Judge against this decision. The learned District Judge following the Full Bench authority of this Court in Phool Chand v. Badri Prasad ILR (1952) 2 Raj 768: (AIR 1953 Raj 51) allowed the appeal and rejected the application of the judgment-debtor on the ground that it had been presented after the confirmation of the sale. Against the judgment of the learned District Judge the present appeal has been filed.

2. On behalf of the appellants reliance is placed on Manilal Mohanlal v. Sayed Ahmed AIR 1954 SC 349. The learned District Judge distinguished that case on the ground that' confirmation had not taken place in it before the judgment-debtor filed an objection praying for setting aside the sale. We have carefully gone through the judgment of their Lordships of the Supreme Court, They have held in unambiguous terms that non-deposit of the sale money in accordance with Rules 84 and 85 of Order 21 renders the sale a nullity. It was observed:

There was default in depositing 25 per cent of the purchase money and further there was no payment of the full amount of the purchase money within fifteen days from the date of the sale. Both the deposit & the payment of the purchase money being mandatory under the combined effect of rules 84 & 85 the Court has the discretion to forfeit the deposit but it was bound to re-sell the property with the result that on default the purchaser forfeited all claim to the property. These provisions leave no doubt that unless the deposit and the payment are made as required by the mandatory provisions of the rules, there is no sale in the eye of law in favour of the defaulting purchaser and no right to own and possess the property accrues to him....

Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of opinion that the provisions of the rules requiring the deposit of 25 per cent of the purchase-money immediately, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon. noncompliance with these provisions there is no sale at all. The relies do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the tirst instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceeding as a complete nullity. The very fact that the court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired no rights at all.

It may be mentioned that the decisions in Mahomed Ali Mia v. Kibena Khatun 9 Ind Cas 66 (Cal) and Smt. Annapurna Dasi v. Bazley Karim AIR 1941 Cal 85 which were dissented from by this Court in the Full Bench case were approved by their Lordships of the Supreme Court. The result of the decisions of their Lordships of the Supreme Court is to overrule the Full Bench decision of this Court in ILR (1952) 2 Raj 768: (AIR 1953 Raj 51).

3. It was held in Merla Ramanna v. Nallapa-raju (S) AIR 1956 SC 87 that when a sale in execution is void an application by a judgment-debtor to have it declared void and for appropriate relief is governed by Article 181 and not by Article 166. The cause of action accrues to the judgment-debtor when he is dispossessed. The present application filed by the judgment-debtor on 13-1-56 is therefore en-tertainable.

4. In the result we allow the appeal with costs, set aside the order of the District Judge and restore the order of the Munsif.


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