P. Hajee Batcha Saheb vs M. Mahomed Ebrahim Saheb

Phillips, J.—The facts of this case are as follows:

A certain property was sold by Court-auction in three lots on 4th September, 1922. The first lot was put up and knocked down to respondent''s

bid for Rs. 1,850. The 25 per cent, deposit was not paid at once but the sale of the second lot was1 proceeded with. While that was going on, the

respondent wished to retract his bid for the first lot on the ground that he had been bidding under a mistake. The officer conducting the sale refused

to allow him to do so and this order was confirmed by the Court on a petition put in two days later, namely, on the 6th of September, 1922. The

first lot was again put up for sale after lots 2 and 3 but no bids were secured. The decree-holder then put in an execution (with which we are now

concerned), dated 27th November, 1922. He asked (1) that the respondent should be directed to pay the purchase money of Rs. 1,850 into

Court, (2) that in default of, such payment the said lot No. 1 should be ordered to be re-sold, and (3) that any deficit on such resale should be

recovered from the respondent by issue of warrant of arrest. The District Judge has dismissed this petition on the ground that the property should

have been re-sold forthwith on failure to deposit the 25 per cent, of the purchase money, and that therefore the petitioner should put in a fresh

execution petition for the sale of the property. When the respondent failed to make the deposit, the officer conducting the sale put up lot No. I after

lots Nos. 2 and 3 had been sold. No bids were received and the matter was reported to the Court. The question that arises now is whether there

has been a re-sale of the property as directed in Order 21, Rule 84. It is not disputed that the property was put up for sale and that if there had

been any bids it would have been sold, but it is contended for the respondent that inasmuch as no bids were received the property cannot be

deemed to have been re-sold. The point is not free from doubt, for in the strict meaning of the word "" re-sold "" it would appear that there must be

an actual sale of the property, but what is to happen if it is impossible to resell the property? Under Order 21, Rule 71, any deficiency of price

which may happen on a re-sale by reason of the purchaser''s default shall be recoverable from the defaulting purchaser under the provisions

relating to the execution of a decree for the payment of money. If the property had realised one rupee, the defaulting purchaser would have been

liable to pay the balance of Rs. 1,849. in the event of there being no bids at all, is he to escape this liability? It is certainly, not the in-tention of the

Act that he should escape scot-free in such circumstances, and it only remains to be determined whether the words "" shall forthwith be put up for

sale "" were complied with. It is undoubted that on principle the words should have this meaning and I should feel inclined to hold that the provisions

of the section had been complied with when the property is put up for resale.

In the present case, however, I think this appeal may be decided on other grounds. The appellant had put in an alternative prayer that the

property should again be resold. When the re-sale failed for want of bids, the conducting officer should have adjourned the; sale and continued it

until he had obtained a bid. His petition, therefore, to resell the property should have been ordered.

The objection is taken that if a re-sale is now ordered more than two years after the original sale, the conditions of the section that the re-sale

should be held forth with would not be complied with, but it must be remembered that a re-sale was held and failed and that the appellant within a

reasonable time put in an application to hold the sale again. The fact that the prayer was refused by the District Court with the result such re-sale

has been postponed for two years can hardly affect the question. An application was made within a reasonable time and we must take the date of

the application as being the date on which the fresh re-sale should have taken place. Although then I should be prepared to say that the respondent

was liable to make good the deficit of Rs. 1,850 yet, in view of what has taken place, 1 think it is advisable in the interests of justice that the

property should again be resold and if there is any deficit it should be recovered from the respondent. The appeal is accordingly allowed and the

property directed to be resold at once.

After the sale has been held and confirmed, it will be open to the appellant to apply for the recovery of the deficit, if any, from the respondent in

pursuance of the prayer in his petition.

The respondent will pay the appellant''s costs of this appeal.

Madhavan Nair, J.

I agree. It is difficult to say that property is ""resold"" when there are no bidders at the auction and consequently the sale proves abortive. But, I

do not think the legislature intended that the word ""resale"" should be so strictly understood. In this respect, the requirements of Order 21, Rule 84

are sufficiently complied with when the property to be re-sold is actually put up for re-sale. The defaulting purchaser should not be absolved from

liability for want of bidders at the auction. In the circumstances of this case, I agree with the order proposed by my learned brother.