Shahzadi Begum vs Hakim Manohar Lal

This is a judgment-debtor''s revision application in a case arising out of the execution sale of a house which was confirmed in favour of the auction-purchaser-opposite party. The house was auctioned for Rs. 5.400/- and one-fourth of the price was duly deposited forthwith by the bidder. Before, however, the remaining price could be paid in, the judgment-debtor preferred objections on the next day alleging that the house should be resold as the auction was not sufficiently advertised and the price at which it was knocked down was extremely low. On 26-2-1952, the judgment-debtor further applied to the Court and obtained an order to the effect that the balance of sale price should not be taken from the auction-purchaser till the disposal of his objections. The result was that the remaining three-fourths of the price was not paid till 4-3-1952. On that date, though the objections still remained to be decided, the purchaser deposited the balance of the price and obtained confirmation of the sale. Aggrieved by this order, the judgment-debtor went up to the Chief Judge, City Civil Court, in appeal, who while rejecting the prayer for re-sale of the property, set aside the order of confirmation and remanded the case for disposal according to law, because in his opinion, such an order should not have been made till after the objections were decided.

It is contended on behalf of the revision petitioner that in view of the fact that the auction-purchaser did not deposit the price within the period of fifteen days, specified in R. 85 of O. 21, C.P.C., the consequences envisaged by R. 88 of the Order viz., the automatic cancellation of the sale, should have followed and since the rule is mandatory, the Court below had no authority to deviate from it or refuse to order a re-sale.

Rule 86, O. 21, lays down:

In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.

There is no doubt that the procedure prescribed by the rule is obligatory and leaves no discretion to the Court, so far as the question of re-sale is concerned. But in cases, where the failure in depositing the price in Court on the due date is brought about by consent of the parties and the order of the Court is obtained in that behalf, the position is altered considerably. The general rule that the Court cannot give extension of time to the auction-purchaser is enacted by the Legislature in the interest of the judgment-debtor and the decree-holder, its object being to ensure that the auction-purchaser should speedily pay up the price. It follows that the rule can be waived by the persons who stand to be benefited by it. See in this connection - Varankkot Illath Subramaniyam Nambudri, Karnavan and Manager of the Illom Vs. V.K. Vykunda Kammathi and Others, AIR 1931 15 (Lahore) and -- Kalipada Mukerji Vs. Basanta Kumar Dutta and Others, which hold that when the prescribed period for the payment of the balance of the price is extended with the consent of the judgment-debtor, the sale can be confirmed on payment of the remaining sum within the extended time.

Obviously, as the petitioner himself secured an order from the Court that the money should not be taken from the auction-purchaser till after the disposal of his objections, the auction-purchaser cannot be blamed or allowed to suffer if he acted on the faith of the judgment-debtor and allowed the period set down in R. 85 of O. 21, C.P.C., to pass. The petitioner cannot, in such a case, be allowed to return round and claim advantage of the delay in making of the deposit which was occasioned by his own act.

The order of the Court below is right and we dismiss the revision application with costs.