ORDER
1. Heard the learned Counsel for the applicant Sri P.R. Ramesh and Sri M.R. Rajagopal, learned Counsel for respondents 2, 3a and 3b and 4.
2. This revision under Section 115 of the CPC arises from the judgment and order dated 16-12-1993 delivered by Sri K.M. Murari Mouni, learned Additional Civil Judge, Shimoga, allowing the appeal of the judgment-debtor i.e. present respondents 3a and 3b in execution case No. 41 of 1986 challenging the order of the Additional Munsiff, Shimoga, dated 2-4-1993 on I.A. No. 5 under Order 21, Rule 90 read with Section 151 of the CPC and Order 21, Rule 66 of the CPC. The learned Trial Court i.e., Execution Court rejected the application of the 4th judgment-debtor taking the view that there was proper sale proclamation and sale warrant. There was valid tom-tom and the value offered is also adequate and sufficient. He held that the 4th judgment-debtor failed to show that there is material irregularity which resulted in substantial injury caused to him by the auction sale held in this case. After having so observed, the learned Additional Munsiff dismissed the application and ordered that in consequence of dismissal of I.A. No. 5, the auction sale held in the case has been confirmed and made absolute. On appeal, the Execution Court’s order has been set aside by the learned Lower Appellate Court and the appeal had been allowed and the sale had been set aside by the Appellate Court. The Court below set aside the sale on two grounds:–
That the auction purchaser did not deposit or pay the 3/4th sale consideration as purchase price though provisions of law allowed 15 days time after sale. It opined that in view of the provisions of Order 21, Rules 84 and 85, when the purchaser has not deposited the remaining amount i.e., 3/4th of the purchase price within prescribed period, the purchaser did lose all his rights. He followed the law laid down by the Supreme Court in this connection under Order 21, Rules 84 and 85 in the case of Manilal Mahanlal Shah and Others v Syed Ahmed Syed Mahamad and Another. The Court below further found in this case that in conducting the sale and issuing the proclamation, the Execution Court had also to follow the mandate of Rule 64 of Order 21 of the Code
before issuing the sale proclamation and it found that the Execution Court did not comply with that requirement and as such also the sale of the property namely 4 acres 25 guntas of wet land and 1 acre 16 guntas of dry land in Sy. No. 25 for recovery of meagre sum of Rs. 2,945-05 ps. is illegal and without jurisdiction and as such it set aside the sale while allowing the appeal of the judgment-debtor. Feeling aggrieved from the judgment and order of the Appellate Court, the auction purchaser has come up in revision under Section 115 of the Code of Civil Procedure, before this Court.
3. I have heard Sri P.R. Ramesh, Counsel for the revision-petitioner and Sri M.R. Rajagopal and Sri Rudragowda for respondents.
The learned Counsel for the revisionist-appellant urged that the Court below acted illegally in setting aside the auction sale that had been knocked down in favour of the revision-applicant.
Sri Ramesh urged that the decision of the Supreme Court in the case of Manilal Mohanlal Shah, supra, did not apply to the facts of the case. Sri Ramesh submitted that auction bid in favour of the revisionist had been knocked down on 14-12-1990 and on the same day the purchaser-bidder deposited 25% of the bid amount, and thereafter the fifteenth day did fall on 29-12-1990 i.e., during the winter vacation (Xmas holidays) as such the purchaser-bidder on reopening day i.e., 2-1-1997 moved the Court for receipt order being issued so that purchaser could deposit the 3/4 balance of bid amount and the learned Munsiff ordered issue of receipt on 3-1-1991 and the receipt order was issued to the revision-petitioner i.e., auction purchaser on 11-1-1991 for Rs. 18,000/- and the auction purchaser did deposit the amount on 11-1-1991 and the deposit was well within time as without receipt order deposit could not be made.
4. This contention of Sri Ramesh has been hotly contested by Counsels for opposite parties. The learned Counsels urged that the revisionist did not take the receipt order which had been ordered on 3-1-1991, and he allowed the time to pass on till 11-1-1991. There is no explanation why he did not take the receipt order on 3-1-1991 the date it was ordered nor thereafter, he allowed the days to pass on till 11-1-1991. Further learned Counsel for the respondents urged that the 3/4th of bid amount had to be deposited in the Court by 29-12-1990 and as it was during vacation, the purchaser had to deposit money in Court on reopening day i,e., by or on 2-1-1991. But the purchaser (revisionist) did not deposit the money in Court so the auction sale, under Order 21, Rules 84 to 86 of the Code, became non est, as if there was no sale. The consequence of Rule 86 had to follow. He further contended even neither on 3-1-1991 nor even on 4-1-1991 the purchaser made deposit, instead deposited on 11-1-1991 for no reason after almost 8 days after. So sale became non est i.e., nullity and Execution Court could not condone delay nor could either expressly or impliedly extend the time as fixed or prescribed by Rule 85. So auction sale dated 14-12-1990 became null and void and liable to be set aside.
5. The respondents’ learned Counsel further urged that entire sale proceeding in which auction sale was held on 14-12-1990 has been null
and void, for failure or Execution Court to pertorm its obligation to first consider and determine if for the satisfaction of decree it was necessary to put on auction sale the entire property in question or the decree could be satisfied by auction sale of only a small fraction or part of the property as the decree was only for small sum of Rs. 2945-05 ps. only while the property put to auction sale for realisation of that sum was 4 acres and 25 guntas of wet land and 1 acre 16 guntas of dry land in Sy. No. 25 worth in all of more than or about Rs. Fifty Thousand and every case not less than auction bid at twenty-four or twenty-five thousand. The respondents’ learned Counsel in this connection referred to the decision of their Lordship of Supreme Court in the case of Ambati Narasayya v M. Subba Rao and Another .
6. The learned Counsel of revisionist contended in rejoinder that plea based on Rule 64 of Order 21 could and ought to have been raised before the drawing of sale proclamation but the judgment-debtor waived it, now he should not have been permitted to raise it.
7. That as regards the first contention of the learned Counsel for revision-petitioner Sri P.R. Ramesh this contention may appear to be very attractive but is without substance. That Order 21, Rule 84 requires the auction purchaser to deposit 25% i.e., 1/4th amount of the auction price immediately after the declaration of auction bidder to be purchaser i.e., after the bid has been knocked in his favour, with officer or person conducting the sale, as sub-rule (1) of Rule 84 of Order 21 mandates that in case of default of deposit of 1/4th sum of bid amount by auction purchaser the property shall forthwith be resold. Rule 85 of Order 21 of the Code provides the 3/4th balance of amount of purchase price should be paid by purchaser into the Court, before the Court closes on the fifteenth day, from the date of auction sale being knocked down in favour of the highest bidder declared as purchaser. Rule 86 of 2[Order] further mandates and provides that in case of default of payment within period mentioned in Rule 85 the property shall be resold and that if Court think fit after defraying the expenses of sale, from initial deposit of 1/4th of sale price made by defaulting purchaser, the deposit may be forfeited to the Government and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be [substantially] sold.
8. Thus these Rules 84, 85 and 86 mandates and make mandatory the deposits to be made as directed i.e., 25% to be deposited immediately after bid is knocked down in favour of the highest bidder by him i.e., on his being declared as to be the purchaser and the remaining 75% i.e., entire 3/4th of sale or purchase price is to be paid into Court before the close of Court on the fifteenth day from the date of sale and in case of default, it ordains the Court to resell the property i.e., it leave no discretion or power to Court to extend the time statutorily fixed by these rules.
even under Section 148 of the Code or under inherent powers. Sub-rule (2) of Rule 84 and proviso to Rule 85 are not relevant for the purpose of this case.
When I so opine, I find support for my above view of law from the decision of their Lordship of Supreme Court in the case of Manilal Mohanlal Shah, supra, wherein their Lordships have observed as under:–
“11. Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of the opinion that the provisions of the rules requiring the deposit of 25% 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 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 purchaser without depositing 25% 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 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.
12. It was urged before us that the Court could allow a set off in execution proceedings under its inherent powers apart from the provisions of Order 21, Rule 19 of the Civil Procedure Code. We do not think that the inherent powers of the Court could be invoked to circumvent the mandatory provisions of the Code and relieve the purchasers of their obligation to make the deposit. The appellants by misleading the Court want to benefit by the mistake to which they themselves contributed. They cannot be allowed to take advantage of their own wrong”.
9. In the case of Hiralal v Smt. Champa Devi, a Division Bench of Allahabad High Court has after referring to Order 21, Rule 85 and Rule 86 thereof been pleased to lay down:–
“A comparison of Rules 84 and 85 will make it clear that while deposit of 25% of the amount of purchase money has to be made to officer or other person conducting the sale and the balance of purchase money has to be paid by the purchaser into Court”.
The Division Bench further laid down:–
“On the face of it rule appears to be harsh and technical. But an examination authority makes it clear and wherever deposit has
not been allowed it has been held that Court has no option but to resell the property under Rule 86. The Act of 1908 has now given a discretion to the Court whether the amount shall or shall not be forfeited to Government. The rest of the Rule remains mandatory. If on the subsequent date the Court knew that provisions of Rule 85 of Order 21 of the Code had not been complied with and under Rule 86, the property had to be resold it could not ignore the provisions of Code and confirm the sale on the ground that neither decree-holder nor judgment-debtor had made an application within time”.
10. Same is the view expressed in the case of Nandalal v M/s. Siddiqui, wherein it has been laid down that the failure to make deposit at or within the time prescribed under Rule 84 or 85 results in automatic cancellation of sale by which auction purchaser purchased the property and he can have no interest in the property i.e., subject-matter of sale.
The Division Bench of Punjab and Haryana High Court has in the
case of Nischhattar Singh v Babukhan, also expressed the same view.
In a latest decision of the Supreme Court in the case of Balram v Ilam Singh, their Lordships of the Supreme Court after having referred to case of Manilal Mohanlal Shah, supra and the observations made therein in detail has been pleased to lay down as follows:–
“It is to be noted that the argument that it is only a material irregularity in sale to attract Rule 90 instead of Rule 85 was expressly rejected and it was clearly held that Rule 85 being mandatory its non-compliance renders sale proceedings a complete nullity. Regarding the Execution Court to proceed under Rule 86 the argument that Execution Court has inherent power to extend time on the ground of its mistake was also rejected. In our opinion, the contention of the learned Counsel are fully rejected by the decision of the Court”.
In para 10 of the report their Lordships further laid emphasis on duty and responsibility of purchaser in this regard and above.
“It is also to be noted that the duty to pay the full amount of purchase money within prescribed period of 15 days from the date of sale of property is cast on purchaser by virtue of Rule 85 of Order 21 and therefore entire responsibility to make full compliance of mandatory provision is his (See para 10 of report)”.
In para 11 of the report in Manilal Mohanlal Shah’s case, supra, their lordship further laid down:–
“In view of our conclusion that there was a clear non-compliance of the requirement of Rule 85 which rendered the sale a nullity, we
consider it unnecessary to decide this further question (referred in para 11) in the present case”.
10-A. These above quoted observations clearly and fully negative the contention of Sri P.R. Ramesh even with regard to inherent powers of Court for extending the time or for treating that there was to be deemed to be due compliance with Rule 85 of Order 21.
11. That apart, in the present case fifteenth day expired on 29-12-1990 but by virtue of provision of Section 10 of the General Clauses Act, 1897 whereunder it has been provided that whereby any Central Act or Regulation, any act or proceeding is directed or allowed to be done or taken in a Court or Office on a certain day or within a prescribed period, then if the Court or Office is closed on that date or the last day of the prescribed period the act or- proceeding shall be considered as done or taken in due time if it is done on the next day afterwards on which Court or office is open, it may be said that deposit or payment of balance of purchase price could be made in Court or deposited in Court by 2-1-1991 as last date of fifteen days did fall during Xmas Holidays or Winter Vacation.
12. The question in this case is deposit made in this case of balance of purchase price in Bank on 11-1-1991 could be deemed or considered to have been made in due time. No doubt 29-12-1990 fell during vacation, Court reopened on 2nd January, 1991. The applicant i.e., auction purchaser moved the Court for receipt order on 2-1-1991 by presenting tender application. The Court passed order thereon on 3-1-1991. The auction purchaser obtained that on 11-1-1991 and then made deposit in Bank/treasury on 11-1-1991. The Court below clearly observes that there is no rule which prohibited auction purchaser from depositing the amount in Court on 2-1-1991 itself. I may also observe no such rule or order has been placed before that which may be said to prohibit the purchaser from depositing the amount into the Court on 2-1-1991 (the reopening day). As such, there is no explanation why auction purchaser-revisionist did not deposit the balance of purchase price in the Court. That on 3-1-1991, the learned Munsiff, had directed the issue of receipt order, but there is nothing on record as observed by Court below to show what steps he had taken on 3rd January, 1991 or thereafter till before January 11, 1991 to get receipt order from the office of the Munsiff Court for depositing the said amount, the balance purchase price. Why the purchaser could not take receipt order on 3-1-1991 or thereafter or earlier there was no explanation nor he had averred anything about availability of ready cash of Rs. 18,000/- at that time and date.
In this view of the matter, the lower Appellate Court found that the purchaser could not be deemed to have made deposit in due time, and so far failure to deposit or pay the balance of purchase price by purchaser it held that for failure to deposit as per Rule 85, sale stood cancelled.
13. No doubt the Division Bench of the Allahabad High Court in Mst. Gomati v Lachmanrao, has held the bona fide tender amounts to tender
but this case is of no help to the auction purchaser i.e., revision-petitioner as in that case though on last date of period of fifteen days i.e., 17-11-1932, the tender was filed for depositing the sums thereunder. The Presiding Officer seized the tender the same day at 3 P.M. returned it to appellant (purchaser) and in accordance with usual practice the appellant in that case had to deposit the cash in Imperial Bank through local treasury and that could not be done on 17-11-1932, that was done on 18-11-1932 and there was no suggestion that appellant was not in a position to make the payment at the time when the tender was filed in Court, so Court accepted tender in that case to be bona fide amounting to payment. Here in the present case, though tender or application for receipt order was made on 2-1-1991, and Court ordered issuance thereof on 3-1-1991. But the purchaser did nothing to obtain that order from the office of the Court till 11-1-1991 without even any explanation for the period from 3-1-1991 till 10-1-1991. So mere filing of tender or moving for receipt order cannot be deemed to be deposit of balance of purchase money by purchaser within 15 days from the date of sale under Rule 85 of Order 21 of the Code.
14. Thus considered it can be said to be a case of any error or jurisdictional error on the part of Court below i.e., the First Appellate Court in setting aside the sale and in its holding the sale to be nullity. Therefore it is held that this first contention of revision petitioner’s Counsel Sri P.R. Ramesh is without substance.
15. That as regards the second question relating to non-compliance of Rule 64 of the Order 21 in my opinion there is also no substance in the contention of Sri Ramesh. It is well-settled that when a statute or an Act confers power or jurisdiction to do an act and prescribes specific conditions and specific manner or mode for the doing thereof, it can be done in that manner alone and not otherwise as legislature intends it to be done in that manner alone and not otherwise.
See (a) Nazir Ahmed v King Emperor,
(b) State of Uttar Pradesh v Singhara Singh,
(c) State of Gujarat v Shantilal Mangal Das,
(d) Assistant Collector of Central Excise, Calcutta v National Tobacco Company of India Limited.
The provision of Order 21 of the CPC specially dealing with “sale specially” and beginning from Rule 64 onward prescribe the specific mode how sale proceeding is to be taken. Rule 64 of Order 21 of the Code specifically puts obligation and duty on Court on one hand and on the other is indicative of Court’s jurisdiction in this regards and puts specific limitation as well and provides that Court in execution of decree can order sale of property attached only to the extent the sale of that property
or such part thereof as in its opinion is necessary to satisfy the decree and no more and casts a duty or obligation to consider and examine and determine that.
16. It is one of the basic principles of law under Order 21, Rule 64 the Court before proceeding for sale including issuance of sale proclamation is required to determine to what extent the property of the judgment-debtor is to be sold in order to satisfy the decree. It would be in the fitness of the things to quote Rule 64. Order 21, Rule 64 is under the head “sale generally” and reads as:–
“Rule 64. Power to order property attached to be sold and proceeds to be paid to person entitled.–Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same”.
A reading of this provision indicates that the Court can order sale of either whole or part of the property “as may be necessary to satisfy the decree” i.e., if sale of whole property is necessary for satisfaction of decree, then the Court may direct sale of entire property. If decree can be satisfied by sale of a portion of property, then Court has got jurisdiction only to order sale of that portion. It means that the Court has been conferred with jurisdiction to order sale of property or portion of property examining and testing the necessity to discharge the decree. If the decree can be discharged by sale of portion of the property, then Court has no jurisdiction to order sale of entire property and it is mandatory duty of the Executing Court to examine this question and determine as to what extent the property attached is to be sold, whether in part or in whole. When I so observe, I find support from the observations of their Lordships of the Supreme Court in the case of Ambati Narasayya, supra. After having referred to Order 21, Rule 64, their Lordships observed as under:–
“7. It is of importance to note from this provision that in all execution proceedings the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree is to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree-holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This in our opinion, is not just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction”.
8. In Takkaseela Pedda Subba Reddy v Pujari Padmavathamma, this Court after examining the scope of Rule 64, Order 21 of the CPC has taken a similar view:
“Under this provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words “necessary to satisfy the decree” clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage”.
In paragraph 9, their Lordships deprecated the tendency of the Execution Courts in their failure to discharge this duty. Their Lordships observed,
“Unfortunately, no such attempt was made and it was not even thought of. The Court has blindfold sold the entire property. This is an usual feature which we have noticed in most of the execution cases. We must deprecate this tendency. There is a duty cast upon the Court to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the Legislature which cannot be ignored. We cannot, therefore, sustain the impugned sale. It must be set aside being in contravention of the provisions of Rule 64, Order 21 of the CPC”.
This very principle has been reiterated by the Lordships of Supreme Court in later decisions, one of which is the case of Lalchand v VIII Additional District Judge and Others, in which their Lordships have referred to Ambati Narasayya’s case, supra, and to the decision in Deshbandhari Gupta’s case, supra, and again laid it down, sale held in violation of Rule 64 as well as without Execution Court applying its mind to Rule 64, Order 21 and without examining whether only a portion of property could be sold, sale not being in conformity with requirement of Order 21, Rule 64 of the Code is illegal and without jurisdiction and so null and void.
17. In the present case also, the learned Civil Judge in paragraph 16 of the judgment has held that the sale of 4 acres 25 guntas of wet land and 1 acre 16 guntas of dry land in Sy. No. 25 for recovery of a meagre sum of Rs. 2,945-05 ps. is illegal and without jurisdiction. The Trial Court has not applied its mind and did not perform its duty to determine the question as to what extent the sale of the property is necessary in order to satisfy the decree. This very first ground itself had been sufficient enough for the lower Appellate Court to have set aside the sale and it has done so, and rightly done so, as the sale itself had been null and
void for failure to comply with Rule 64 of Order 21. It appears that the Execution Court acted illegally and committed jurisdictional error in ordering sale of property without complying with Rule 64 of Order 21 of the Code as such the lower Appellate Court acted within its jurisdiction in allowing the appeal and in holding the auction sale to be null and void and setting aside the same. The auction sale once being void and null it could not be confirmed and it has to be set aside and resale according to law might be ordered and be held, unless in the meanwhile, judgment-debtor has satisfied the decree.
Thus considered in my opinion, the judgment and the order of the lower Appellate Court is perfectly justified and correct and does not suffer from any error or jurisdictional error within the four corners of Section 115 of the CPC. No error of jurisdiction has been shown in the findings of the Appellate Court as such in my opinion this revision has got no merits and is therefore hereby dismissed. No order as to costs.