An application for chalan within time is sufficient compliance with the mandatory provisions of Order 21, rule 85, Civil Procedure Code, and hence Order 21, rule 86, is not attracted.

( 1 ) WITH great respect, I may say that the Judgment in M. Suryanarayanamurthy v. Southern Agencies, (1961) A. L. T. 138. requires reconsideration. I, therefore, refer the matter to Bench for an authoritative pronouncement as to whether the non-payment, of general stamp for certificate or the amount required for such stamp within the time prescribed would nullify the sale and a resale would be necessary. Rule 86 of order 21, Civil Procedure Code, does not make any distinction between the two types of payment required to be made under Order 21, rule 85, Civil Procedure Code. The decisions which are referred to in the Judgment of my learned brother Sanjeeva row Nayudu, J. , are distinguishable and have no bearing upon the point involved in the appeal.

( 2 ) THE appeal be therefore placed before Bench. The respondents Advocate argued that a litigant cannot be mulcted by reason of the delay on the part of the court. This point can also be raised during arguments before the Bench. In pursuance of the above Order of Reference, this appeal came on before the bench. (Chandra Reddy, C. J. and Narasimham, J.)

( 3 ) THE Judgment of the Court was delivered by chandra Reddy, C. J.-This Civil Miscellaneous Second Appeal is referred to a bench by Qamar Hasan, J. , as he thought that the Judgment of a single Judge of this Court in Suryanarayanamurthy v. Southern Agencies, requires reconsideration. The facts leading up to this appeal are briefly these. A decree was obtained against the appellant in O. S. No. 179 of 1948 and, in execution of that decree, the property was brought to sale on 3rd September, 1956 and the and respondent purchased the property, he being the highest bidder. He paid 25 per cent, of the sale price on that day itself and the balance of the sale price on iyth September, 1956. As regards the stamp for the certificate, he applied for chalan on I7th September, 1956 but it was not issued till soth September, 1956. As soon as he collected the chalan, he deposited the amount required for the stamp on 20th September, 1956 itself.

( 4 ) THE judgment-debtor presented an application to set aside the sale contending that as the and respondent did not furnish non-judicial stamp before 18th September, 1956 as required by the relevant rules of the Civil Procedure Code, the property should be resold. This application of the judgment-debtor was dismissed by the District munsif, who took the view that the auction-purchaser had not committed any default in depositing the cost of the general stamp, as he had applied for the chalan in time and paid the money into Court immediately after the issue of the chalan. The judgment-deb tor carried an appeal to the Subordinate Judge, Masulipatam. The subordinate Judge, in agreement with the opinion of the trial Court, disallowed the appeal. Aggrieved by the decision of the lower appellate Court, the judgment debtor has preferred the present Civil Miscellaneous Second Appeal. The point presented in support of this appeal is that as the auction-purchaser failed to supply the general stamp for the certificate or to deposit the value or amount required for the stamp as required by Order 21, rule 85, the sale held on 3rd September, 1956 was ineffective and the Court was bound to resell the properties. It is argued that the rule stated in Suryanarayanamurthy v. Southern Agencies, is not sound and is opposed to the terms of rule 85 which are mandatory and not directory as thought by the learned Judge who decided Suryanarayanamurthy v. Southern Agencies, (1961) A. L. T. 138.

( 5 ) THIS contention has to be given effect, as rule 85 has employed mandatory language and the omission to satisfy the requirement of Order 21, rule 85, vitiates the sale. The effect of the non-observance of the terms of rule 85 is set out in rule 86. That rule calls upon a Court to order a resale in the event of the deposit not being made within specified time.

( 6 ) IN L. P. A. No. 129 of 1960 preferred against Suryanarayanamurthy v

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