Judgement

SHELAT, J. : This appeal by special leave raises the question whether an order by an executing Court setting aside an auction sale as a nullity is an appealable order.

2. In pursuance of a decree passed against the appellant (judgment-debtor) the judgrnent-creditor took out execution proceedings. An auction sale of the factory belonging to the appellant was ordered by the executing Court. In pursuance of that order, the Amin (the auction-officer) held an auction sale on September 10, 1962. Respondent No. 1 was held to be the highest bidder for Rs. 2,45,000. The appellant challenged the auction-sale alleging that the Amin had not realised 1/4th of the sale proceeds immediately after the said auction was closed as required by O. 21, R. 84 of the Code of Civil Procedure. His case was that the Amin realised the said amount and deposited it in the Treasury on September 11, 1962. The appellant thereafter filed an application under O. 21, R 84 before the Civil Judge, Aligarh. Respondent No. 1 contested that application stating that he had tendered the said amount immediately after the auction, that the said amount being large the Amin hesitated to accept it in cash as it was too late that day to deposit it in the Treasury. He also alleged that the Amin wanted to know whether he could accept a cheque instead of cash and, therefore, took Chhotelal, his representative along with him to the residence of the Munsif, Hathras, to take directions. Leaving Chhotelal in the car outside the Munsif s residence, the Amin went in to consult the Munsif if he could accept a cheque but the Munsif advised him to take cash. Thereafter the Amin returned to the car where he accepted the said amount from Chhotelal and issued there and then a receipt therefor. The respondent case, therefore was that he offered the amount immediately, that it was no fault of his that the Amin did not then accept it, and that it was paid in any event soon after the auction and, therefore, payment was in consonance with O. 21, R. 84.

3. The Civil Judge refused to accept the case of respondent No. 1 and setting aside the auction sale held it to be a nullity. He rejected the report of the Amin that he had accepted the money immediately after seeing the Munsif outside the Munsif s house where Chhotelal was in the car. The Civil Judge thought that the Munsif s evidence did not support the Amin as the Munsif had stated that it was only the Amin who had come to see him. Therefore, the evidence of the Amin and Chhotelal that the amount of Rs. 61,250 was paid in the car outside the Munsif s house was not " free from doubt. What impressed the Civil Judge was the fact that in his report, dated 10-9-1962 the Amin had not mentioned the fact of his having received the said amount and the receipt issued by him that day. There was, however an endorsement at the foot of that report made on September 11, 1962 in which the Amin had mentioned the fact of his having received the said amount and the receipt having been issued by him on September 10, 1962. The Civil Judge, however, felt that if he had received that amount on September 10, 1962, the Amin was bound to have mentioned that fact in the body of that report that very day, that is, on the 10th and that, therefore, the endorsement was written out as an afterthought to support Chhotelal s evidence. Apart from the evidence of the Amin, the Munsif and Chhotelal, there was also the evidence that respondent No. 1 had that day withdrawn Rs. 1,51,000 from the Bank and had available with him cash and there was no reason why he should not have paid Rs. 61,250 from that amount that very day.

4. Respondent No. 1 filed an appeal against the said order in the High Court. The High Court accepted the Amin s report and his evidence and reversed the judgment and order of the Civil Judge holding that ere was no breach of O. 21, R. 84 and that the sale, therefore, could not be set aside as a nullity. The High Court held and rightly-that there was no c