IMPORTANT POINT
Rule 85 of Order XXI, Civil Procedure Code, being mandatory, its non-compliance renders the sale proceedings a complete nullity requiring the executing court to proceed under Rule 86 and property has to be resold unless the judgment debtor satisfies the decree by making the payment before the resale.

JUDGMENT

J.S. Verma, J.-The appellant obtained a money decree against respondent No. 1 on 25.12.1982. On 02.01.1983 the appellant filed an application for execution of the decree by recovery of the amount of Rs. 17,892/-. The appellant applied for recovery of the decretal amount by sale of a large tract of agricultural land of the respondent No. 1, the value of which shown by the appellant was Rs. 73,000/- in 1976. The auction was held on 10.12.1984. The appellant bid at that auction with the permission of the Court. The appellant s bid was for the amount of Rs. 23,500/-. On 12.12.1984 the bid of the appellant was accepted. The appellant did not make any deposit on the date of auction and claimed adjustment of the decretal amount against the sale price. Admittedly, there was a shortfall in the sale price, even after the decretal amount was set off and the deposit made by the appellant within the time allowed was taken into account. After expiry of the period prescribed for payment of the full sale price, on 19.4.1985 the appellant deposited Rs. 3,727.25 which fell short towards the sale price of Rs. 23,500/-. On 18.9.1985 the executing court accepted this amount of Rs. 3,727.25, taking the view that the shortage in deposit was due to the mistake of the Court office in making the calculation and the court has inherent power to correct its own mistake. The judgment-debtor filed objection to the validity of the sale which was rejected.

2. The judgment-debtor, respondent No. 1, preferred a revision against this order of the executing court to the District Judge, which was dismissed. The judgment-debtor, respondent No.1, filed a petition under Article 227 of the Constitution of India in the High Court, which has been allowed. By interim order dated 19.12.1986 the High Court directed further proceedings for the confirmation of the sale to remain stayed subject to the condition that the judgment-debtor, respondent No. 1, deposit the entire decretal amount within 2 months. On 9.1.1987 the judgment-debtor deposited Rs. 19,773/-, which fell short by Rs. 2,007.85. This shortage also appears to have occurred due to the mistake in calculation of the court s office. The judgment-debtor, on discovery of the mistake deposited the remaining amount of Rs. 2,007.85. However, the executing court proceeded with the execution and confirmed the sale on 4.5.1987 and also gave possession of the land auctioned to the appellant. By order dated 19.4.1990 the High Court allowed the petition of the respondent No. 1 and held that the judgment-debtor has been wrongly dispossessed from the land inspite of the interim order dated 19.12.1986; that the full amount of sale price not being deposited by the appellant within the time fixed under Order XXI, Rule 85, Code of Civil Procedure, the deposit of the balance amount of Rs. 3,727.25 much later did not cure the defect, since the executing Court has no power to extend the time.

3. This appeal by special leave is by the decree-holder against the above order of the High Court. In view of the fact that the appellant is continuing in possession of the land auctioned inspite of the orders of the High Court, in this appeal stay was granted in favour of the appellant by the interim order dated 6.8.1991 subject to the following conditions :-

"(a) The appellant must deposit a sum of Rs. 65,000/- areas security in the trial Court within a period of 6 months from today in 3 instalments. The first instalment of Rs. 20,000 shall be deposited within a period of 2 months from today; the second instalment of Rs. 20,000/- within a period of 4 months from today; and the last instalment for today ;

(b) The appellant must further deposit a sum of Rs. 15,000/- per year in the Trial Court for the period June, 1991 till the appeal is finally disposed of. The amount shall be deposited on or before the 31st of July each year, the first deposit being on or before 31.7.1992.

(c) The a