Karnataka High Court
Dharam Rao vs Shankarappa on 10 December, 1984
Equivalent citations: ILR1985KAR1051
ORDER
21 RULE 85 - Rule applies also to decree-holder Is Mandatory -- If purchase money not deposited within 15 days sale becomes null and void -- Court bound to order re-sale.
Rule 85 clearly says that while 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 Rule 72. Therefore, Rule 85 of Order 21 C.P.C. applies equally also to the decree-holder. It is a mandatory provision even though the auction-purchaser might be the decree-holder What Rule 85 of order 21 C.P.C. prescribes is that if the decree-holder. is entitled to any set-off, he must deposit the remaining amount within 15 days from the dace of sale. But it does not enable him to deposit the money as and when he pleases.... The deposit not having been made within the statutory limit of 15 days, the Court is bound to order re-sale because the sale already conducted being in violation of Rule 85 is null and void.
It is not necessary either for the Judgement-debtor or for any one even to apply under Order 21 Rule 90 C.P.C. to make an application for oetting aside the sale. Order 21 Rule 90 C.P.C. would come into play only when the sale is vitiated by irregularity or fraud in publishing or conducting the sale (Para 8) ORDER Kulkarni J.
1.This is a decree holder's revision against the order dated 12-7-1979 passed by the Additional District Judge, Gulbarga, in Miscellaneaus Appeal No. 29 of 1979 confirming the judgment dated 22-10-1975 passed by the Principal Munsiff, Gulbarga, in Misc. Case No. 10 of 1971 setting aside the sale.
2. It is undisputed that the decree-holder after obtaining the decree sued out the execution and brought the property of the judgment debtor to sale. It is undisputed that the decree holder with the permission of the Court bid the property for Rs. 1,700/-. It is also undisputed that the decree amount is Rs. 600/-
3. The sale was held on 9-l-197(sic). The amount was deposited on 12-3-1970. The sale was confirmed and the decree holder was put in possession of the property also.
4. Thereafter the judgment debtor filed the present Miscellaneous Case before the Munsiff stating that the purchase money had not been deposited within 15 days as required by Order 21 Rule 84 C.P.C. The sale was null and void and that the Court can only order resale of the property.
5. The said argument appealed to the Munsiff and he set aside the sale. On an appeal by the decree holder the District Judge also dismissed the appeal. Hence the Revision.
6. Order 21 Rule 72 C.P.C. "says that when a decree holder himself purchases with the permission of the Court, the purchase money and the amount due on the decree may 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. So Rule 72 of Order 21 C.P.C. only pre-scribes that if the decree holder wants to bid himself, he should obtain the permission of the Court and if he becomes a successful bidder the purchase money and the amount due on the decree may be set off against one another.
7. Order 21 Rule 84 C.P.C. says as:-
"(l) 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 of 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 re-sold.
(2) Where the decree-holder is the purchaser and is entitled to setoff the purchase-money under Rule 72, the Court may dispense with the requirements of this Rule."
Order 21 Rule 84(2) C.P.C. makes exception in the case of a decree-holder auction-purchaser. It only says that the Court may dispense with the requirement of deposit of 25 per cent if the decree-holder is the purchaser and is entitled to set off the purchase money. The decree holder can claim set off only to the extent of decree-amount if he has bid the property for more than the decree amount.
8. Order 21 Rule 85 C.P.C. says as -
"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 Rule 72.."
Rule 85 clearly says that while 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 Rule 72 Therefore Rule 85 of Order 21 C.P.C. applies equally also to the decree holder. It is a mandatory provision even though the auction purchaser might be the decree holder. What Rule 85 of order 21 C.P.C. prescribes is that if the decree-holder is entitled to any set-off, he must deposit the remaining amount within 15 days from the date of sale. But it does not enable him to deposit the money as and when he pleases. The Learned Counsel Shri Shivaraj Patil placed before me the decision in M. Panchaksharappa
-v.- Shivayogeshwara Cotton Press Co.
'It reads as:-
"In the case of a decree-holder auction purchaser the provision of Order 21 Rule 84(1) CPC cannot be construed as mandatory. Where an
1. 1973 (1) Mys. L. J page 1 order is passed under Order 21 Rule 72(1) permitting the decree-holder to offer bid at the auction sale, in the absence of anything to the contrary, the effect of Order 21 Rule 72(2) is to dispense by necessary implication with requirement of Order 21 Rule 84(1) that 25 per cent of the purchase money should be deposited on the date of sale. Therefore the sale held is not a nullity merely because the deposit was not made".
This ruling interprets Rule 84 of Order 21 C.P.C. It does not consider the effect of Rule 85 at all. As already indicated above, Rule 84(2) of Order 21 C.P.C. makes an exception in the case of a decree-holder and therefore it is not mandatory. As already stated above, Rule 85 applies not only to a stranger purchaser but it also equally applies to the decree-holder-auction purchaser. Therefore the deposit not having been made within the statutory limit of 15 days, the Court is bound to order resale, because the sale already conducted being in violation of Rule 85 is null and void. The Learned author Shri Mulla in his C.P.C. 13th Edition on page 1157 has stated as :-
"While the Court has a discretion under the rule to refund the-de-posit in whole or in part, it has no discretion as regards resale of the property, which is obligatory. The Allahabad High Court has held that on default the auction purchase stands automatically cancelled because the Court in such a case has no opto in but to order a resale. It is obligatory on the Court to order a re-sale and the court has no jurisdiction to extend time for payment".
Therefore, under these circumstances, as the decree-holder has failed to deposit the remaining amount within the statutory period of 15 days the sale automatically stands cancelled. It is not necessary either for the judgment debtor or for any one even to apply under Order 21 Rule 90 C.P.C. to make an application for setting aside the sale. Order 21 Rule 90 C.P.C. would come into play only when the sale is vitiated by irregularity or fraud in publishing or conducting the sale.
9. Therefore, the orders passed by the Court below need no interference. The Revision dismissed. Now the property will have to be resold as required by Order 21 Rule 86 CPC.