Karnataka High Court
S.V. Kanakaraj And Ors. vs Vijaya Bank, Mangalore And Ors. on 27 February, 1987
Equivalent citations: AIR1987KANT252, ILR1987KAR1317
JUDGMENT
1. This is an appeal by judgment-debtors 4,5 and 6 against the order dt. 5-41982 passed by the civil Judge Chickmagalur,in Execution Case NO.159 of 1976 rejecting I.A.No.6 filed by judgment-debtors 2 and 4 Under O.21,R.90 read with S. 151,C.P.C. and rejecting I.A.No.7 filed by judgment-debtors 5 and 6 under O.21, R.90 read with S. 151, C.P.C.
2. The decree-holder Vijaya Bank is respondent 1in the revision .The decree holder Vijaya Bank obtained a decree against judgment-debtors 1to 8 in O.S. 21 of 1979. Judgment-debtor 1is the firm. Judgment-debtor 2 S. K. Venkatachala Setty is shown as a partner of the said firm. It is now submitted before me that S.K.Venkatachala ,Setty is dead. Therefore the execution is proceeded with by the decree-holder against judgment-debtors 3 to 7.
3. The property was brought to sale by the decree-holder Bank. The sale was held on the spot on 7-3-1979 and the sale took place in the Court on 9-3-1979. The present auction purchaser respondent 5 was the highest bidder for Rs. 75,000/-. The Court accepted the highest bid of auction purchaser respondent 5 on 9-3-1979 and directed that he should deposit 1/4th of the bid amount immediately and adjourned the case to 11-4-1979 for confirmation of the sale.
4. Respondent 5 auction purchaser claims to have obtained Receipt Order on 9-3-1979 itself - But the 1/4th bid amount was deposited by him in the State Bank of Mysore, Chickmagalur Branch, on 10-3-1979.
5. Judgment-debtors 2 and 4 field I.A.No.6 under O.21, R.90, C.P.C. read with S. 151, C.P.C. and judgment-debtors 5 and 6 filed I.A.No.7 under O.21,R.90.C.P.C. for setting the said sale alleging that one of them was not served with the sale notice and that the property was bid of an extremely irregularities that have occurred in the course of the publication of the sale.
6. The decree-holder as well as the auction purchaser resisted the said applications.
7. The Court below dismissed both I.A. No. 6 and I.A. No. 7. Hence the appeal.
8. While the matter was pending here, the appellants' counsel filed an application LA - No - 5 to permit him to raise an additional ground to the effect as :-
"As the auction purchaser has not immediately deposited or paid 25 per cent of the purchase money as required by R. 84 of 0. XXI of C.P.C., the sale is liable to be set aside."
The auction -purchaser filed his counter affidavit stating that he had tendered 1/4th of the bid amount on the very same day and it was already 5.00 p.m. when the bid was accepted by the Court and hence he took the Receipt Order on the same day at 5-15 p.m. and deposited the money in the State Bank of Mysore on 10-3-1979.
9. The learned counsel Shri Visweswara raised an initial objection that the applications I.A. Nos - 6 and 7 were filed only under 0 - 2 1, R. 90, C.P.C. read with S. 151, C.P.C. and that they do not appear to have been filed under S. 47, C.P.C. and that therefore the present additional ground which would bring the applications within, the ambit of S. 47, C.P.C. should not be permitted to be raised .in the present proceedings.
10. In Para 3 of the applications, it is clearly stated as : -
"These judgment-debtors humbly submit that the sale held in the above case either on 7-S-79 or on 9-3-79 is illegal and liable to be set aside etc., etc."
Therefore, a perusal of the said applications would show that the judgment-debtors have contended that the sale is illegal and not according to law. How it is illegal and not according to law would be rather a matter of evidence. Evidence need not be pleaded in the pleadings - Further merely because S - 47, C.P.C. is not mentioned in the applications filed, it does not mean that it should not be taken as one coming within the ambit of S. 47, C.P.C. After all in our country very rarely attention is paid to the relevant provisions. The relevant provisions on many occasions are omitted to be mentioned in the pleadings. But, however, the Court should not be carried away by such simple technicalities and omissions. It should bear in mind the allegations made in the applications. If the allegations made in the applications are sufficient to bring the applications within the ambit of S. 47, C.P.C.the Court should proceed to treat it also as an application filed under S. 47, C.P.C. Therefore, the said initial objection raised by Shri Visveswara is rejected and I permitted the learned counsel Shri Vijayashankar to take this additional ground and urge this point. Very extensive arguments were advanced by the learned counsel Shri S. Vijayashankar for judgment-debtors and the learned counsel Shri Visveswara for the auction purchaser and Shri Rai for the decree-holder.
11. Order 21,11. 84, C.P.C. reads as :-
"Deposit by purchaser and re-sale on default :- (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 per cent 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 resold.
(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under R - 72, the Court may dispense with the requirements of this rule."
12. As already stated above, the highest bid of the auction purchaser was accepted by the Court on 9-3-1975. It is undisputed that 1/4th of the bid amount was deposited in the State Bank of Mysore by the auction purchaser on 10-3-1979. Now the auction purchaser gives an explanation that the bid was accepted by the Court at about 5-00 p.m. on 9-3-1979 and he tendered the amount to the Judge and that the Judge refused to receive that amount and he requested for the issue of Receipt Order and the Judge ordered the issue of the Receipt Order and he took the Receipt Order from him at 5-15 p.m. on that day and as the Bank was closed on that day by that time, he deposited the said 1/4th of the bid amount in the State Bank of Mysore, Chickmagalur Branch, on 10-3-1979. The order sheet dt/- 9-3-1979 does not show that the amount was tendered to the Judge and the Judge refused to receive the same and that the auction purchaser made a request for the issue of Receipt Order. The learned counsel Shri Visveswara submitted that the very order of issuing the Receipt Order indicated that the auction purchaser had the money with him. He relied for that purpose on R. 10 of the Account Rules for the Subordinate Civil and Criminal Courts, 1967.
It reads as : -
"Receipts and Payments of Civil and Criminal Courts Deposits (Personal Ledger of General Deposits) : -
'When a party brings money into the Court for deposit, the Nazir of the Court or the clerk who is entrusted with the cash work, shall issue a Receipt Order in Form 'A', authorising the treasury to receive the money in deposit duly filled in indicating clearly the nature of the deposit, the name of the party, number of the case and the amount tendered. As no detailed amount of deposits will be maintained at the treasury, acknowledgment of the Treasury in the said Receipt Order will be merely to the effect that the amount specified therein -has been received and credited to the personal ledger account of General Deposits of the Court concerned.
Notes :- Where there are Banking Treasuries, the amount should be remitted to the Bank direct for being credited to the General Deposit Account of the Court kept at the Bank.
"He argued that the very issuance of the Receipt Order on 9-3-1979 indicated that he had money with him and that he had brought the money to the Court for deposit - According to him, no Receipt Order could have been: issued by the office unless he had brought the money to the Court. Rule 10 which only prescribes the procedure for issuance would not be sufficient to raise a presumption that the money had been brought by the auction purchaser and he actually tendered it in the Court. Therefore the said argument advanced by the learned counsel Shri Visveswara is not acceptable.
13. Rule 6 of the said Account reads as :-
"Cash transactions shall be commenced at I 1 -00 a.m. They should be closed, as far as possible, half an hour before the closing hour of the treasury, so that the cash amount due to be remitted to the treasury (or Bank) may be remitted in time, provided, however, that the Presiding Judge or Magistrate may permit any transactions to be effected beyond the prescribed hours in exceptional circumstances. "
Therefore there is nothing in the Account Rule prohibiting the Judge or the Office from accepting the cash if tendered beyond office hours. On the other hand, it enables the Presiding Judge to permit the transactions to be effected beyond the prescribed hours even in exceptional circumstances. The exceptional circumstances would be when the sale is held in the afternoon and when the Bank is closed. Therefore if R. 6 is read along with R. 10 of the Account Rules, the argument of the learned counsel Shri Visveswara that he actually tendered the money to the Judge and the Judge refused to receive it would not carry his case any further.
14. The learned counsel Shri Visveswara drew my attention to the word 'immediate' in Venkataramaiya's Law Lexicon and Legal Maxims, 2nd edition 1980 found on page 1056. It reads as : -
"Immediate: -The word 'immediate' means allowing a reasonable time for doing it. The test is, whether under the circumstances, there was such unreasonable delay as would be inconsistent with what is meant by immediate.
The word 'immediate' is meant with all convenient speed."
15. The learned counsel Shri Visveswara also drew my attention to the John B. Saunders Words and Phrases Legally Defined, Second Edition, page 5. It reads as : -
"Immediately (Time):
There appears to be no material difference between the terms 'immediately' and 'forthwith'. A provision to the effect that a thing must be done 'forthwith' or 'immediately' means that it must be done as soon as possible in the circumstances, the nature of the act to be done being taken into account (37 Halsbury's Laws Ord Edn.) 103).
The only material word remaining is the word immediately .... It was said that that word excludes all intermediate time and actions; but it will appear that it has not necessarily so strict a signification : Stevens in his Thesaurus expounds the word, immediate, by cito et celeriter; so Cooper's Dictionary renders in English immediately, forthwith, by and by; and Minshew gives it as various meanings, and refers it to the word presently; nor is its signification more confined in legal proceedings, as appears even from 2 Lev. 77, in the case of Pibus and Mitford (Pybus v. Mitfor (1674), 2 Lev 75), which was cited to the contrary, which says thus, though the word immediately, in strictness, excludes all mesne time, yet to make good the deed and intents of parties it shall be construed such convenient time as is reasonably requisite for doing the thing."
16. He also referred me to Strouds Judicial Dictionary, 4th Edn. Vol. 3, page 1283. It reads as : -
"Immediately - (1) 'The word 'immediately', although in strictness- it excludes all mean times, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonably requisite for doing the thing" (Pybus v - Mitford, (1674) 2 Lev 75 (77). 'The court cannot say it absolutely excludes all mesne acts" (R. v. Francis, (1735) Cas T Hard 115); but 'immediately' implies that the act to be done should be done with all CONVENIENT SPEED.
(2) Thus, as regards a Judge's certificate which any particular statute says shall be given 'immediately', that "does not mean ten minutes, or a quarter or half an hour; but such a lapse of time as excludes the possibility of other business intervening to alter the impression made on the Judge's mind"."
17. So, according to him, the word 'immediately' connotes that margin of some reasonable time to do the act, will have to be given to the party - According to him, if the word 'immediately' is to be interpreted in the strict sense of the term, it would definitely result in injustice - According to him, if R. 84 of 0. 21, C.P.C. is to be interpreted strictly, then the auction purchaser must pour the money in the presence of the Judge the moment he declares that the sale is accepted. That is not the purpose of using the word 'immediately' in R. 84 of O. 21, C.P.C. What it on means is that once the Judge declares that the highest bid is accepted, the auction purchaser must produce 1/4th of the bid amount immediately in the Court. But, however, this argument would lose all its significance if O. 2 1, R. 84, C.P.C. is to be given its due meaning. Order 21, R. 84(l), C.P.C. requires that the auction purchaser shall pay immediately after such declaration a deposit of 25 per cent on the amount of his purchase money to the officer or other person conducting the sale. It further says that in default of such deposit, the property shall forthwith be resold. The latter portion reading as 'the property shall forthwith be resold', connotes that no fresh issue of a fresh sale proclamation is necessary. Without any fresh issuance of the sale proclamation, the Court shall have to proceed to resell the property -If the resale is not to be held on the very same day and if it is to held on the next day or on some other dates, the very object of holding the resale forthwith might be frustrated, because the bidders in sufficient numbers might not appear before the Court at all for participating in the sale. If the latter portion of 0. 21, R. 84(l) is read along with the word Immediately' occurring in the first part, it only means that 1/4th of the bid amount should be deposited on the very same day when the highest bid is accepted by the Court Any other interpretation to the contra would: cause immense injury or loss to the judgment-debtors because his property might be sold for a song if the property is sold on some, other day.
18. Then Shri Visveswara brought to my notice R. 69 of 0. 21, C.P.C. which says that the Court has got the discretion to adjourn the sale to a specific day and hour. Even if the Court has got the discretion to adjourn, the sale, it will have to adjourn the same only' to a specific day and hour and it cannot say simply adjourned. It is not the case here that, on' 9-3-1979 the sale was ordered to be adjourned by the Court to any other date.
19. According to the learned counsel Sri Visveswara, his client did tender 1/4th amount before the Judge after he accepted the highest 'bid of his client and the Judge ordered the issue of Receipt Order -The issuance of receipt order does not amount to tendering I the amount and it does not mean that the Auction Purchaser was ready with the money. Rule No. 110 of the account rules relied on by him in this connection would not permit the raising of any presumption that the Auction Purchaser was ready with the money and that he tendered the same to the Judge or the office on the date of sale i.e. 9-3-1979. Even otherwise, the Court has no jurisdiction to give time to the Auction-Purchaser to tender the bid amount.
20. The Supreme Court has held in Manilal Mohanlal Shah v. Syed Ahmed, as :
"The provisions of 0. 21, Rr. 84,85 and 86 requiring the deposit of 25 per cent of the purchase-money immediately, on the person being declared as a Purchaser, such person not being a decree-holder, and the payment of the balance within 15 days of the sale, are mandatory and upon non - compliance with these provisions there is no sale at all. The rules do not contemplate that there can be. any sale in favour of a stranger Purchaser without depositing 25 per cent of the purchase money in the first 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 proceedings as a complete nullity. The very fact that the Court is bound to resell the property (Rule 86) in th6 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."
In para. 6 the Supreme Court has stated as :
"(6) One of the auction-purchasers, who is a pleader, has himself argued the appeal before us. The principal question which falls to be considered is whether the failure to make the deposit under O. 21, Rr. 84, and 85 is only a material irregularity in the sale which can only be set aside under R. 90 or whether it is wholly void. It is argued that the case falls within the former category and the application under R. 90 being barred by limitation, the sale cannot be set aside. It is also contended that the Court having once allowed the set off and condoned the failure to deposit, the mistake of the Court should not be allowed to prejudice the purchasers who would certainly have deposited the purchase price but for the mistake. We are of opinion that both the contentions are devoid of substance.
In order to resolve this controversy a reference to the relevant rules of O. 21 of the Civil P.C. will be necessary. These rulles are 72, 84, 85 and 86. :
"72. (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 S. 73, be set-off against one another..........;
(3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; ........
"84. (1) On every sale of immoveable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent 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 resold.
(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under R. 72, the Court may dispense with the requirement of this rule.
"85. 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.
"86. In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the-Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold."
In para. 7 the Supreme Court has held as :
"(7) The scheme of the rules quoted above may be shortly stated. A decree-holder cannot purchase property at the court-auction execution of his own decree without the express permission of the Court and that when he does so with such permission, he is entitled to a set-off, but if he does so without such permission, then the Court has a discretion to set aside the sale upon the application by the judgment-debtor, or any other person whose interests are affected by the sale (R. 72). As a matter of pure construction this provision is obviously directory and not mandatory -See "Radha Krishna v. Bisheshar Sahay AIR 1922 PC 336. The moment a person is declared to be the purchaser, he is bound to deposit 25 per cent. of the purchase-money unless he happens to be the decree-holder, in which case the Court may not require him to do so (Rule 84)."
In para. 8, it has been stated as (8) 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 full amount of the purchase money must be paid fifteen days from the date of the sale but the decreeholder is entitled to the advantage of a set off. The provision for payment is, however, mandatory. (Rule 85). If the payment is not made within the period of fifteen days, the Court has the discretion to forfeit the deposit and there the discretion ends but the obligation of the Court to re-sell the property is imperative. A further consequence of nonpayment is that the defaulting purchaser forfeits all claims to the property. (Rule 86)".
In para-9, it has been stated as (9) It is not denied that the purchasers had not obtained any decree on foot of their mortgage and the claim of Rs. 1,20,000/-which they put forward before the execution Court had not been adjudicated upon or determined.
The mortgagees one of whom is a pleader,applied on the day of the sale claiming a set off on foot of the mortgage. The Court without applying its mind to the question immediately, passed the order allowing set off, This claim was obviously not admissible under the provisions of R. 84 which applies only to the ,decree-holder. The Court had clearly no jurisdiction to allow a set-off. The appellants misled the Court into passing a wrong order and obtaining the advantage of a set-off while they knew perfectly well that they had got no decree on foot, of the mortgage and their claim was undetermined.
There was default in depositing 25 per cent of the purchase money and further there was no payment of the full payment of the purchase money within fifteen days from the date of the sale. Both the deposit and the payment of the purchase money being mandatory under the combined effect of Rr. 84 and 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 claims 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."
In para-10 the Supreme Court has stated "(10) ..................
The decision of a single Judge (Tapp, J.) in -'Nathu Mal v. Malwa Mar, AIR 1931 Lahore 15 is distinguishable upon its facts. There the auction-purchaser had actually tendered the money but the payment was postponed by consent of parties pending the disposal of the objection by the judgment-debtor. We do not agree with the remark made in that case that the provisions of R. 85 are intended "to be directory only and not absolutely mandatory". A Division Bench of the same Court (Tek Chand and Abdul Rashid, JJ.) held - 'A. R. Davar v. Jhinda Ram', AIR 1938 Lahore 98 that the court had no jurisdiction to extend the time for the payment of the balance of the purchase money under R. 85 and it must order resale under R. 86." Therefore, the Supreme Court makes it abundantly clear that Court cannot give time, to the Auction-Purchaser to deposit 1/4th of the bid amount,because R.84 as held by the Supreme Court is a mandatory one. Even if the parties to the execution consent to grant, time to the Auction-Purchaser, the Court has no jurisdiction even by consent of parties to give time to the Auction-Purchaser to deposit 11/4th of the bid amount.
21. In Ram Chand Spg. & Wvg. Mills v. Bijili Cotton Mills(P) Ltd., the Supreme Court has held as :-
"(2) The respondent's case, therefore, was that he offered the amount immediately, that it was no fault of his that the Amin did not then accept it, and that it Akpaid in any event soon after the auction and therefore, payment was in consonance with 0. 21, R. 84.
" The principle laid down in the said case is that even if the amount was tendered by the Auction-Purchaser and it was not accepted, the provisions -of R. 84 will not help the Auction-Purchaser in the matter, because the Court has no jurisdiction to extend the time for the payment of 1/4th of the bid amount. Further the said Supreme Court ruling says that when the sale is a nullity, the Court is bound to re-sell the property and Court can do so even suomotu without being moved by one of the parties to the execution.
22. Sri Visveswara relied on the decision in H. S. Savitramma v. State Bank of Mysore, ILR (1973) Kant 1277.
In the said case, it is stated as "It was submitted on behalf of the 2nd respondent that as there was a strike in the State Bank on 19th Oct. 1971, it was not possible to deposit the 1/4th amount in the bank. As the next day was a holiday the Court ordered that the 1/4th amount should be deposited on 21st Oct. 1971."
It was further held in the said case as:
"The order sheet of 19th Oct. 1971 shows that a submission was made to the Presiding Officer that it will not be possible to deposit the amount into the State Bank of Mysore on'; that day on account of the strike. As 20th~ Oct. 1971 was a holiday, it was submitted that the amount would be deposited in the State Bank of Mysore only on 21st Oct. 1971. The Court accepted the submission of respondent No. 2 and made an express order directing him to deposit the amount in the State Bank of Mysore on 21st Oct. 1971. These circumstances clearly indicate that respondent No. 2 did tender the amount which was required to be deposited but that it is the Court that was not willing to accept the amount and directed that the said amount should be deposited in the State Bank of Mysore on 21st Oct. 1971 as it was not possible to deposit the amount on 19th Oct. 1971 on account of the strike and on 20th Oct. 1971 on account of the fact that it was a holiday. In these circumstances, it cannot be said that respondent No. 2 did not deposit the amount immediately as required by 0. 21, R. 84, C.P.C.
23. It is no doubt true that the decision in Manilal. has been referred to, but it proceeded on the assumption that as the Court itself had granted time to deposit the 1/4th amount~ the later deposit of the amount was sufficient compliance with O. 21, R. 84, C.P.C. The observation by the Supreme Court in Mandal's case that the Court has no jurisdiction at all to extend the time for the payment of the 1/4th bid amount or to give permission to set off, has not been considered in the said case. Therefore, the ruling in Savitrampa's case runs contrary to the principle laid down in Manilal's case.
24. The view that if the 1/4th bid amount is not deposited on the same day forthwith, the R. 84 would be attracted, is again strengthened by the principle laid down in Venkatasubbiah v. Akkamma, AIR 1930 Mad 761 (FB) and also the principle laid down in Tapesh Chandra Bagchi v. United Bank of India, AIR 1969 Assam 10 and also by the principle laid down in Kamaxi Kom Bhikku Shetty v. Vaman Thippayya Bhattageri, . The said Kamaxi's case says that all fresh re-sales held on the same day on account of non-compliance of R. 84 would meet the requirement of the words "re-salt: forthwith".
25. As already indicated above, if 1/4th of the bid amount is not deposited or paid immediately on the same day after the highest bid is accepted, the sale would be a nullity and it is incumbent upon the Court to re-sell the property forthwith.
26. The argument of the-learned counsel Sri Visveswara, that his client had tendered the money to the Court on the same day and that the Judg6 refused to accept it and ordered issuance of the R. 0. to him will not come to his rescue at all even if it is assumed to be true. As already indicated above, the Court has no jurisdiction to refuse to accept the bid amount if offered and if the Court has refused to accept as now submitted by Sri Visveswara, it will not amount to compliance with the mandatory requirement of R. 84. His argument that the Court's failure to accept the bid amount should not result in the sale being set aside, does not appeal to me in the least. Therefore under the circumstances, the sale held on 9-3-1979 is a nullity and on the basis of -this point itself it will have to be set aside.
27. The learned counsel Sri Vijayashankar submitted that the sale proclamation was in English and in-view of the decision of this Court in Manjamma v. Suryanarayana Rao, die sale must be set aside. In the said Manjamma's case, it was held on the joint submission made by both the Advocates that the language of the Court was Kannada at the time when the sale proclamation was issued. Now, the learned counsel Sri Visweswara has produced before me a notification that on or about the time of the~' issuance of the sale proclamation both English and Kannada were the Court languages. If it is so, then the ruling in the said Manjamma7s case would not be of much help to Sri Vijayashankar. Sri Vijayshankar then submitted that the sale proclamation had not been affixed to the notice board of the Town Municipality as required by Karnataka Amendment O. 21, R. 54(2). It is no doubt true that it was not published, but it would at the most amount to material irregularity. But the simple material irregularity by itself is not sufficient to set aside the sale. The material irregularity must be such as to result in substantial injury to the judgment-debtor. The simple inadequacy of the price by itself is not sufficient. It must be shown that the inadequacy of the price which even if considered as an injury to the judgment-debtor was due to the material irregularity; but the records in the case show that there was due. Publication of the sale proclamation in the Town as well as in the Newspaper and the sale proclamation was affixed to the Court notice board as well as the Notice Board of the other offices. The material on record shows that even according to the judgment-debtors the property was worth Rs. 11/2 lakhs. The bid amount in this case is Rs. 75,000/subject to an encumbrance of Rs. 40,000/and odd. Therefore, it cannot be said that the bid accepted is inadequate. Therefore, the said contention will not help him in the least.
28. The learned counsel Sri Visveswara raised a plea that the Auction-Purchaser, who was a necessary party had not been impleaded. The Appellants had filed an application under S. 5 of the Limitation Act and this Court has ordered the impleading of the Auction Purchaser subject to the objection being decided later on. According to him, the Auction-Purchaser is a necessary party to such appeals and if he is not impleaded as a party, an appeal against him cannot be sustained. A look at the appeal memo shows that the Auction-Purchaser - B. S. Sathyanarayana Setty had been impleaded initially as respondent No. 5 and the office of this Court raised an objection as to how he could be made a party. It appears that the Appellants Counsel had sought for an interim order of stay and in his anxiety to move for stay, he complied with the office objection and deleted him as per the office objection. It was not proper for the office to decide such question itself. If the office feels any doubt, in such cases it should place the matter before Court and it should not arrogate the power to itself to raise such unsustainable objections. Perhaps on account of this office objection, which was unsustainable, the Appellant's Counsel was misled in the matter and in his anxiety to move the Court for interim order, he instead of seeking for overruling of the office objection, thought it rather fit to delete him. Therefore under the circumstances, it cannot be said that the Auction-Purchaser had not been made a party, because the deletion itself is improper. It was not necessary for the Appellant's Counsel to file an application to condone the delay, because he could have moved the Court, requesting it to overrule the objections of the office and to set aside the order deleting the respondent No. 5 Auction-Purchaser himself. It is made absolutely clear that in such cases, the Auction Purchaser is not only a formal party, but also absolutely a necessary party. The office, if it feels doubtful, in such cases, should place the matter before the Court and it should not take upon itself the judicial determination of a person being a necessary party or not. Hence, the objection raised by Sri Visweswara is rejected.
29. But in the view that I have taken that R. 84 has not been complied with, the sale is a nullity. Hence, on this ground alone, the sale is set aside. The appeal is allowed. The Lower Court is directed to issue a fresh proclamation of sale and resell the property.
30. Appeal allowed.