RAMESH MADHAV BAPAT, J.

( 1 ) THE judgment-debtors in E. A. No. 109/ 1995 in E. P. No. 35/ 1994 in O. S. No. 954/ 1989 on the file of the learned iv Additional Judge, City Civil Court, hyderabad filed the present appeal.

( 2 ) IT appears that the 1st respondent filed the suit for recovery of certain amount. The suit was decreed. Later, it filed E. P. No. 35/1994 for execution of the decree by sale of the suit schedule property. In the auction, 2nd respondent became the highest bidder. But, she did not deposit 25 per cent of the auction amount as required under order 21 Rules 84 to 86 C. P. C. Therefore, appellants-judgment debtors filed E. A. No. 109/1995 to set aside the sale. That application was rejected. Hence, the judgment debtors filed the present appeal.

( 3 ) LEARNED counsel for the appellants pointed out that it is mandatory under order 21 Rules 84 to 86 C. P. C. on the part of the auction purchaser to deposit 25 per cent of the purchase money into the Court forthwith, failing which the sale has to be set aside. In support of his contention, he relied upon a Ruling in Manlilal Mohanlal Shah v. Sardar Sayed Ahmed Sayed Mahmad1 wherein it is held as follows:"the provisions of Order 21 Rules 84, 85 and 86 requiring the deposit of 25% of the purchase money immediately, on the person being declared as a purchaser, such person not being a decree holder, and the payment of the balance within 15 days of the sale, are mandatory and upon non-compliance with these provisions there is no sale at all. The Rules do not contemplate that there can be any sale in favour of a stranger-purchaser without depositing 25% of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these Rules, there can be no question of material irregularity in the conduct of the sale. Non payment of the price on the part of the defaulting purchaser renders the sale proceedings a complete nullity. The very fact that the Court is bound to resell the property (Rule 86) in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. "

( 4 ) CONSIDERING the above factual and legal position, we set aside the sale and allow E. A. No. 109/1995.

( 5 ) LEARNED counsel for the 2nd respondent submitted at the Bar that the 1st respondent-decree holder withdrew the amount deposited by the auction purchaser in the Court and utilized it for business purpose and earned profit. Therefore, it should refund the amount to the auction purchaser with interest, as the sale is set 1. AIR 1954 SC 349. aside. In support of his contention, he relied upon Hindi Pracharak Prakashan v. M/s. G. K. Brothers and others2 and Jagdish radhakishan Kayasth v. Ramesh N. Wagh3.

( 6 ) THIS Court is in agreement with the submission of the learned counsel for the 2nd respondent. Therefore, we direct the 1st respondent decree holder to refund the amount withdrawn by it to the 2nd respondent-auction purchaser, within a period of three months, with interest at ten per cent per annum from the date of the withdrawal till the date of refund. In case the amount is not refunded within three months as directed above, 1st respondent- decree holder shall pay interest at eighteen per cent per annum on the amount to be refunded till the date of refund.

( 7 ) THE appeal is accordingly allowed. No costs. 2. AIR 1990 SC 2221. 3. AIR 2001 Bom. 152.

Click Here to Read the rest of this document