JUDGMENT - D.D. SINHA, J.:---Rule returnable forthwith. Heard finally by consent of Shri Dharmadhikari, learned Counsel for the applicant, Shri Kothari, learned Counsel for the respondent No. 1 and Shri Bhangade, learned Counsel for the respondent No. 2.

2. The civil revision application is directed against the order dated 20-12-2000 passed by the Civil Judge, Senior Division, Yavatmal below Exhs. 58 and 61 in Special Darkhast No. 34/1988 whereby the Executing Court has rejected Exh. 58 and allowed Exh. 61. The facts which give rise to the controversy, in nutshell, are as follows.

3. The respondent No. 1 decree holder filed execution proceedings against the present applicant/judgment debtor for recovery of Rs. 2,48,377.96, which were registered as Special Darkhast No. 34/1988. The decree holder during the pendency of the execution proceedings applied for attachment and sale of plot admeasuring 60' x 100' (6000 sq.ft.) along with the building situated at Arni, Tahsil Arni, District Yavatmal. The Executing Court directed auction of the property in question. The Executing Court held auction on 18-10-1995 and respondent No. 2 gave a bid for Rs. 67,900/-. The same being highest, was accepted. The respondent No. 2 auction purchaser deposited 1/4th of the bid amount, i.e. Rs. 16,975/- on the same day, i.e. 18-10-1995 and the balance amount of Rs. 50,925/- on 31-10-1995. The auction purchaser failed to deposit the amount of stamp duty of Rs. 2,720/- payable on the sale certificate within the stipulated period.

4. The present applicant filed an application for setting aside sale, which was rejected on 5-4-1997 and the appeal against the said order also came to be rejected by this Court. The applicant thereafter applied for cancellation of sale and re-sale of the property in question order Order 21, Rules 85 and 86 of the Code of Civil Procedure vide Exh. 58 on 1-1-1998. The respondent No. 1 submitted reply to the said application (Exh. 58) on 3-3-1998. After hearing all the parties, the Civil Judge, Senior Division vide impugned order dated 20-12-2000 rejected the application of the applicant (Exh. 58) whereas allowed the application of the auction purchaser (Exh. 61) and granted permission to deposit the requisite stamp duty payable on the sale certificate. Being aggrieved by the said order, the applicant has filed the present civil revision application.

5. Shri Dharmadhikari, learned Counsel for the applicant, contended that the provisions of Rule 85 of Order 21 of the Code of Civil Procedure are mandatory in nature and require strict compliance by the party. The Court below failed to consider that no-compliance of provisions of Order 21, Rule 85 renders sale as nullity. The learned Counsel contended that auction was held on 18-10-1995. The purchase price was fixed at Rs. 67,900/-. The 1/4th purchase price, i.e. Rs. 16,975/- was deposited by the respondent No. 2 in the Court on 18-10-1995 whereas the balance price of Rs. 50,925/- was deposited on 31-10-1995. It is, therefore, contended that respondent No. 2 has not deposited the amount of stamp duty payable on the sale certificate within fifteen days from the date of sale, which has resulted in non-compliance of mandatory provisions of Rule 85 of Order 21 of the Code of Civil Procedure by respondent No. 2 auction purchaser and as per provisions of Rule 86 of Order 21, the Court has no alternative, but to resale the property. It is contended that the Court below completely failed to appreciate this legal aspect of the matter and, therefore, the impugned order suffers from non-application of mind and is against the established principles of law and, therefore, is vitiated being against the principles of law.

6. The learned Counsel for the applicant further canvassed that the Executing Court has no discretion to condone the delay in payment of stamp duty. It is argued that bare reading of Rules 85 and 86 of Order 21 of the Code of Civil Procedure would reveal that under Rule 85, the Exe

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