Siri Ram Jagat Ram vs Dev Barat L. Bihari Lal

Chopra, J.—This is an appeal by the judgment-debtor in an execution case and it arises out of the following facts:

In execution of a decree for Rs. 3200/- against Shri Ram, a house belonging to him was put to sale on 19-4-1951. The highest bid of Rs. 4700/- was that of Dev Varat Respondent. The Court accepted the sale in his favour on 24-5.-1951 and directed him U) deposit 25% of the sale price. Dev Varat did not deposit the amount. He, on the other hand, p e-sented an application that he was misled in offering the bid and therefore prayed for being allowed to withdraw from the same.

The application was rejected. An appeal against this order was also dismissed. Property was then re-auctioned and this time one Lal Chand gave the highest bid for Rs. 3000/-. This sale in favour of Lal Chand took place on 10-12-1951. He deposited the purchase money within the prescribed period. Before the- sale could be confirmed, the judgment-debtor applied, under Order 21, Rule 89, CPC for being allowed to deposit the decretal amount together with the sum payable to -the purchaser. The prayer was accepted, the amount was duly deposited and the sale in favour of Lal Chand was consequently set aside on 12-1-1952.

On 15-12-1952 the judgment-debtor presented an application under Order 21, Rule 71, CPC for recovery of deficiency in the sale price and also the expenses attending the resale from Dev Varat, the first purchaser. The executing Court accepted this application & directed Dev Varta to pay Rs. 1,700/-as the deficiency and Rs. 150/- as expenses for the second sale. District Judge, Patiala, accepted Dev Varat''s appeal and set aside the order of the executing Court.

Shri Babu Ram, learned Counsel for the Appellant, contends that the sale in favour of Lai Chand became complete when the property was knocked down in his favour or at least when he deposited the purchase-money in Court, and therefore the first purchaser was liable to pay deficiency in the sale-price resulting from the resale on account of his default. He further stresses that the learned District Judge was not right in holding that since the property was not resold forthwith on Dev Varat''s failure to pay 25% of the purchase-money, the latter was not liable to pay any deficiency occasion ed by the resale which took place several months after.

Certain authorities are cited in support of the contention that the term "forthwith" in Order 21, Rule 84, CPC does not mean there and then but it only means within a reasonable time or as expeditiously as the circumstances permit.

The case for the Respondent is that on the second sale having been set aside it should be regarded to have never taken place and -therefore the property cannot be said to have; been resold. It is also contended that the first purchaser is not responsible for the deficiency because the resale took place long after the first sale. A period of seven months that lapsed between the two sales cannot, according to the Respondent; be regarded as reasonable.

In my view, "resale" for the purpose of Order 21, Rule 71, CPC means a sale that, has finalised and has resulted in passing the judgment-debtor''s property to the purchaser. If a sale, on objections having been raised or because of the necessary deposits having been made by the judgment-debtor, set aside it should be regarded as having never taken place. Rule 71 of Order 21 will not be attracted in a case where the sole is set aside for one reason or the other under Order 21, Rule 92.

The judgment-debtor in the present, case did not part with the property, for he got the sale set aside on payment of decretal amount and other charges as required by Order 21, Rule 89. The effect of canceling that sale was to preclude the recovery from the defaulter, Dev Varat, of the difference between the highest bids at the sale and the resale. As the sale in favour of Lal Chand did not in fact materialize Dev Varat ought not to be held responsible for any deficiency in the price offered by Lal Chand.

On the second point as well, learned Counsel for the Appellant has not been able to satisfy me why the sale could not be held earlier and with in a reasonable time of the first sale which fell through because of Dev Varat''s default in making the necessary deposit. The fact that Dev Varat had submitted an application for being allowed to withdraw his offer did not stand in the way of the property being resold.

The delay was not due to any fault of his and the mandatory provisions of Order 21, Rule 84 Code of Civil Procedure, were totally ignored. The resale contemplated by Order 21, Rule 71 is a sale held in accordance with law. Dev Varat can forcefully urge that the property fetched much less because it was re-auctioned after an inordinate delay, for which he was in no way responsible.

The appeal consequently fails and is dismissed with costs.