IMPORTANT POINT
Upon satisfaction of compliance of conditions as provided under Rule 89 Order 21 CPC it is mandatory upon Court to set aside sale under Rule 92.

Headnote:Civil Procedure Code, 1908-Order 21 Rule 89-Petition for setting aside sale carried out in execution of decree-Two conditions to be satisfied are deposit of sum equal to five per cent of purchase money to be paid to the purchaser and amount specified in proclamation of sales less any amount received by decree holder-On conditions being satisfied Court has to set aside the sale-No particular form for said application is provided-Appellant judgment debtor paid the decretal amount to decree holder within one month from date of final bid in Court and filed memo for setting aside the sale in form of objections-Setting aside of sale by executing Court was legal-Impugned order by High Court in setting aside order of executing Court was unsustainable.
Held : Rule 89 of Order 21 is the only means by which a Judgment Debtor can escape from a sale that has been validly carried out. Object of the rule is to provide a last opportunity to put an end to the dispute at the instance of Judgment Debtor before the sale is confirmed by the Court and also to save his property from dispossession. Rule 89 postulates two conditions: they are depositing - 1). of sum equal to five percent of the purchase money to be paid to the purchaser, 2). of the amount specified in the proclamation of sales less any amount received by the decree holder since the date of such proclamation, in the Court. If these two conditions are satisfied the Court shall make an order for setting aside the sale under Rule 92(2) of Order 21 of CPC on an application made to it. In other words then there will be compliance of Court s order or decree that is sought to be executed. Because the purpose of the Rule 21 is to ensure the carrying out of the orders and decrees of the Court. Once the Judgment Debtor carried out the order or decree of the Court, the execution proceedings will correspondingly come to an end. It is to be noted that the Rule does not provide that the application in a particular form shall be filed to set aside the sale. Even a memo with prayer for setting aside sale is sufficient compliance with the said Rule. Therefore, upon the satisfaction of the compliance of conditions as provided under Rule 89, it is mandatory upon Court to set aside the sale under Rule 92. And the Court shall set aside the sale after giving notice under Rule 92(2) to all affected persons. In the case on hand, it is not disputed that within the stipulated period of one month from the date of final bid in Court, the Petitioner - Judgment Debtor paid the decree amount to the Decree Holder and also filed a memo for setting aside the sale in the form of objections. Executing Court noted this aspect. By this payment the requirement under Rule 89(1)(b) of Order 21 was fulfilled. It is also noted that the Respondent No. 1 -Auction Purchaser refused to accept the solatium and he subsequently filed Application for confirmation of sale. Meanwhile the executing Court ordered for the deposit of solatium with the Court. This deposit complied with the second requirement under Rule 89(1)(a) of Order 21. Admittedly, on 25/09/1992 the Petitioner -Judgment Debtor filed his objections to the sale and also paid the entire decree amount together with the cost to the Respondent No 2 - Decree Holder. The factum of the payment of entire decree amount to the Decree Holder with cost was not looked into by the First Appellate Court or by the High Court nor did it attach any value to the memo of objections for setting aside sale. It is also a settled position of law that a mere non-mentioning or wrong mentioning of a provision in an application is not a ground to reject an application. Since, there is no bar in treating the objection (filed in the present case) as an application to setting aside the sale. Hence the setting aside of sale by the execution Court is perfectly in tune with the Code. (Paras 9 and 10)

JUDGMENT

Rajendra Babu, J.-Leave Granted.

2. In execution of a decree the executing Court brought the properties owned by the Petitioner-Judgment Debtor for sale. Proclamation was published on 19/07/1992. On 26/08/1992 the scheduled properties were put up for auction. The final bid was offered by respondent No. 1 in Court on 28/08/1992. On 25.9.1992 the Petitioner-Judgment Debtor paid the entire decretal amount together with the cost to the Respondent No. 2 - Decree Holder accompanied by memorandum of objections for confirmation of sale. A memo was also filed praying to close the execution proceedings. On 30/10/1992 another Memo was filed in the Executing Court reporting the payment of the decree amount. Then the executing Court directed the Petitioner - Judgment Debtor to pay solatium to the Respondent No. 1 - Auction Purchaser. Executing Court also noted that the Respondent No 1 - Auction Purchaser was not ready to accept the solatium amount. In the meanwhile, on 13/11/1992 Respondent No. 1 - Auction Purchaser filed an Interlocutory Application under Order 21, Rule 92 of CPC for confirmation of sale. On 24.07.1993 the Petitioner - Judgment Debtor filed an application to treat the earlier objection dated 25/09/1992 as an application under Order 21, Rule 89 of CPC. However a separate application was also filed under Order 21, Rule 89 of CPC with a prayer for condoning the delay. The execution Court held that the objection filed by the Petitioner - Judgment Debtor on 25/09/1992 could be treated as application under Order 21, Rule 89 of CPC. Predominantly nothing the fact that the Petitioner - Judgment Debtor has paid the entire decree amount and that the sale was yet to be confirmed the executing Court set aside the sale. Accordingly the execution proceeding was closed.

3. On Appeal preferred by the Respondent No. 1 - Auction Purchaser, the first Appellate Court reversed the Order passed by the Executing Court. Aggrieved by the findings of the first Appellate Court, the Petitioner- Judgment Debtor moved a Civil Revision Petition before the High Court. High Court found that an objection can never be treated as an application within the meaning of Order 21, Rule 89 or 90; that the later application was filed is barred by limitation; that the section 5 of Limitation Act is not applicable in the instant case; that the deposit was not made within the prescribed date; that there is no evidence to the effect that the value of property is more than the bid/purchase price; that the question of adequacy of the sale price is irrelevant as it is outside the scope of Rule 89 of Order 21. For these reasons the revision petition was dismissed. This judgment is impugned before us.

4. The only question that requires our consideration in this case is whether the setting aside of sale by the executing Court is correct or not. Under Order 21 Rule 89(1) of CPC an application to set aside sale under Rule 89(1) can be filed. The said provision reads as under:

R. 89, Or. 21: Application to set aside sale on deposit:-(1) Where immovable property has been sold in execution of a decree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest if such person, may apply to have the sale set aside on his depositing in Court, -

(a) for payment to the purchaser, a sum equal to five per cent of the purchase money, and

(b) for payment to the decree holder, the amount specified in the proclamation of sale as that for the recovery which the sale ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree holder.

5. The follow up action to Rule 89(1) is provided under Rule 92(2) of Order 21, which reads as follows:

"(1) ... ...

(2) Where such an application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty day

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2003 Supreme(SC) 1228

IMPORTANT POINT Upon satisfaction of compliance of conditions as provided under Rule 89 Order 21 CPC it is mandatory upon Court to set aside sale under Rule 92.

IMPORTANT POINT
Upon satisfaction of compliance of conditions as provided under Rule 89 Order 21 CPC it is mandatory upon Court to set aside sale under Rule 92.