JUDGMENT
H.S. Bedi, J.
1. In execution of the decree passed in RFA No. 430 of 1995, a public auction of 3 kanals 13 marlas of land was conducted on 27th March, 1990 after proper publication. The appellant, Om Parkash was the highest bidder and he deposited the total auction price of Rs. 85,000/- in the Court. On 9th May, 1990 the judgment debtor-respondent No. 1 moved an application for setting aside of the sale whereas Om Parkash the auction purchaser made an application dated 25.5.1990 for confirmation of the sale and for the issuance of a sale certificate. Both the applications were dismissed on the same day i.e. on 23rd July, 1990. Copies of the orders have been appended as Annexures A-1 and A-2. Om Parkash appellant has thereafter come to this court praying that the order declining his application was not correct in law.
2. Mr. Rajan Gupta appearing for the appellant has urged that the reasons given by the Additional District Judge, Ludhiana in making the order Annexure A-1 were not relevant to the points in issue as on the dismissal of an application made under Order 21 Rule 89, Civil Procedure Code, the executing court had no option but to confirm the sale.
As against this, Mr. Gill the learned AAG appearing for the State of Punjab, has adopted the reasons given by the Additional District Judge.
3. After hearing the learned counsel for the parties, I am of the opinion that the order Annexure A1 cannot be sustained. The Addition District Judge disallowed the application of the auction purchaser on the premises that the word ‘shall’ used in Order 21 Rule 92 was to be read as ‘may’ and as a very valuable piece of land had been given away for Rs. 85,000/- there had been a serious loss to the public exchequer and it would not be proper to exercise judicial discretion to confirm the sale. It will, however, be seen from the bare reading of Order 21, Rule 92 of the Code of Civil Procedure, that where no application under Order 21 Rules 89, 90 or 91 of the CPC has been made or where such application has been made and disallowed, the court shall make an order confirming the sale. To my mind, therefore, the reasons given by the Additional District Judge, Ludhiana in interpreting the word ‘shall’ as ‘may’ in the context of Order 21, Rule 92, Civil Procedure Code, cannot be accepted. The other reason which weighed with the Additional District Judge was that the sale price of Rs. 85,000/- was a paltry amount as the land was in fact more valuable, is equally untenable. First and foremost it would be borne in mind that there is no evidence to show that this was inadequate price but Mr. Rajan Gupta, the learned counsel appearing for the appellant has urged on the strength of a decision of the Supreme Court in Kayjay Industries (P) Ltd v. Asnew Drums (P) Ltd. and Ors., AIR 1974 SC 1331 that a properly put to sale by way of public auction as a result of a court order would ordinarily not be able to get the market rates prevailable at that time and, as such, this fact by itself is not enough to set aside a sale.
4. In the light of what has been held above, I am of the opinion that this appeal deserves to succeed and is accordingly allowed. It is further directed that the sale be confirmed and the executing court is directed to issue a sale certificate immediately.