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Judgment
S. Abdul Nazeer
In these cases, the petitioner has assailed the order dated 24.3.2011 in Ex. no. 15055/2000 on the file of the Additional City Civil Judge (CCH-29), Mayo Hall, Bangalore. The brief facts of the cases are as under:
The petitioner is an assignee of the degree which is the subject matter of Ex. no. 1923/2000. He is a decree holder in Ex. no. 15160/2005. Respondent no. 1 is the decree holder in Ex. no. 15055/2000. In all these cases, respondent no. 2 is j-he judgment debtor. The aforesaid execution petitions are filed on different dates before the different courts. Therefore, a miscellaneous case was filed in Misc. no. 606/2008 by the petitioner before the Principal City Civil and Sessions Judge, Bangalore, for clubbing the aforesaid cases. The Principal City Civil and Sessions Judge, Bangalore by his order dated 10.10.2009 has allowed the said petition and transferred Ex. Case nos. 15055/2008 acid 1923/2000 to CCH no. 29 where Ex. no. 15160/2005 was pending, for disposal in accordance with law. Accordingly, all the three cases were clubbed. In the execution cases, the petitioner filed an application under Order XXI Rule 72 r/w. Order XXI Rule 85 of the CPC seeking permission to bid and set off the decrial amount as against the purchase money. The Court below has allowed the application in part. It has permitted the petitioner to bid in the public auction of the property in question. It has also permitted respondent no. 1 herein to bid in the public auction of the said property. The court below has rejected the claim of the petitioner to set off his decrial claim in the course of public auction. The petitioner has called in question the validity of the said order in these writ petitions.
Sri. Suresh Lokre, Learned Counsel for the petitioner submits that respondent no. 1 has not made any application under Order XXI Rule 72 of the CPC seeking permission of the execution court to bid in the auction. Therefore, grant of permission by the Court below to respondent no. 1 to bid in the auction is invalid. It is further submitted that having allowed the petitioner to bid in the auction, the court below ought to have allowed him to set off the decrial claim.
On the other hand, Learned Counsel for respondent no. 1 has sought to justify the impugned order.
Order XXI Rule 72(1) of the CPC states that no holder of a decree in Execution of which property is sold shall, without express permission of the Court, bid for or purchase the property. Order XXI Rule 72(2) which is relevant for our purpose states where a decree holder purchases with such permission, the purchase money 25% and the amount due on the decree may subject to the provisions of Section 73, 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. Rule 84 of Order XXI of the CPC provides for deposit by purchaser and resale on default. Sub Rule (2) of Rule 84 of Order XXI states that where a decree holder is the purchaser and is entitled to set off the purchase money under Rule 72, the Court may dispense with the requirements of this Rule. Rule 85 of order XXI of the CPC provides for time for payment in full of purchase money. It states that the full amount of purchase money payable shall be by paid by the purchaser into Court before the Court closes on the 15th day from the date of sale of the property provided that in so 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.
It is clear from the aforesaid provisions that if the decree holder purchases the property with permission of the court as provided under Sub Rule (1) of Rule 72 of Order XXI of the CPC, the purchase money and the amount due on the decree may subject to the provisions of Section 73, be set off against one another.
A Division Bench of this Court in M Panchaksharappa vs. Shivayogeshwara Cotton Press Co. of Davanagere AIR 1973 Mysore 135 has held that it should be implied that an order made on application under Order XXI Rule 72(1) of CPC permitting the decree holder to offer bid must ge construed as one granting permission under Sub Rule (2) of Rule 84 also dispensing with the requirement under Rule 84(1) unless there was any order made by the Court to the contrary.
In the instant case, respondent no. 1 has not made an application under Order XXI Rule 72 of the CPC seeking permission to bid in the auction of the property in question. Therefore, the court below is not right in granting permission to respondent no. 1 to bid in the auction of the said property. Having granted permission to the petitioner to bid in the auction, the court below should have allowed him to set off the decrial amount against the purchase money in case he is a successful bidder in the auction. Having regard to Order XXI Rule 72(2) of the CPC, he is entitled for the set off the decrial amount in Ex. nos. 1923/2000 and 15160/2005 as both the execution petitions are clubbed as per the order at Annexure-F in Misc. no. 606/2008 dated 10.10.2009. In the light of the above discussion, I pass the following order:
The order of the court below permitting respondent no. 1 to bid in the author 3f the property in question is hereby quashed. The petitioner is entitled for set off the decrial amount in Ex. nos. 192:3/2000 and 15160/2005 as against the purchase money in case he is a successful bidder in the auction. The writ petitions are disposed of accordingly. No costs.