P.B.GAJENDRAGADKAR, J.

(1) THE principal question which Gajendragadhar J. which this appeal by special leave raises for our decision is: Whether the provisions of s. 21, r. 89 of the Code of Civil Procedure apply to a sale held by a receiver appointed by the court and authorized to sell the property in question. The learned Single Judge on the Original Side of the Calcutta High court as well as the division bench of the, said High court have answered this question in the negative. The appellants contend that the view taken by the Calcutta High court is erroneous.

(2) THIS question arises in this way. In Suit No. 1024 of 1953 on the Original Side of the Calcutta High court a decree for the payment of Rs. 18,497-15-0 was passed by consent in favour of the New Bheerbhum Coal Co. Ltd., (hereinafter called respondent 1) and against the Benares Ice Factory, Ltd., (hereinafter called appellant 2) on 5/12/1955. The decree provided for the payment of the decretal amount by six equal instalments and it directed that in case of default of any one of the instalments the balance of the decretal dues would at once become payable. A first charge was created by the decree on the plant and machinery of appellant 2 for securing the payment of ,the decretal amount. A default having occurred in the payment of instalments respondent 1 applied for the execution of the decree on 10/04/1956. On this application an interim order was made on 17/05/1956, appointing Mr. A. K. Sen, as Receiver of the properties charged. The said application was finally decided by an order passed on 30/05/1956, by which the appointment of the receiver was confirmed and he was given liberty to sell the said properties either by private treaty or by public auction. It is common ground that the receiver took possession of the said property in December 1956.

(3) SUBSEQUENTLY, on 10/03/1958, the receiver entered into an agreement with Sukhlal Amarchand Vadnagra (hereinafter called respondent 2) for the sale of the said property for Rs. 30,000.00. The terms and conditions embodied in the said agreement provided inter alia that within one month from the date of the receipt by the purchaser of intimation from the receiver that the sale bad been confirmed by the High court the purchaser shall deposit with the said receiver the full price of Rs. 30,000.00. On 31/03/1958, respondent 1 applied to the court for confirmation of the said agreement and on 9/05/1958, G.K. Mittter, J., allowed the application. He ordered that the appellants should deposit the sum of Rs. 3,000.00 with the attorneys of the decree bolder towards its claim under the said decree and further directed that if the said amount was paid within the time aforesaid and the balance of the decretal amount was paid within ten weeks thereafter the agreement of sale shall not be confirmed. The order further provided that in default of the appellants paying the amounts as directed within the respective due dates the sale of the charged property by the receiver to the second respondent as get out in the agreement shall be confirmed.

(4) PURSUANT to this order the appellants deposited with the attorneys of the decreeholder Rs. 3,000.00 on 30/05/1958. They had also paid to the receiver Rs. 3,500.00 in August, 1957, towards the decretal dues. It appears that when the appellants were unable to pay the balance as directed by the court appellant 2 applied to the court praying that the agreement of sale should be cancelled and the time within which he was directed to pay the balance of the decretal amount should be extended. The application also sought for certain other directions. G.K. Mitter, J., who heard this application dismissed it on 29/07/1958, and confirmed the agreement of sale.

(5) ON 20/08/1958, appellant 2 took out a notice of motion of an application made by him on the same day praying that leave may be granted to him to deposit the whole of the balance of the decreta