DEFAULT IMPLIES A VOLITIONAL AND DELIBERATE ACT AND IF A MAN FOR NO FAULT OF HIS IS NOT ABLE TO DEPOSIT THE AMOUNT REQUIRED TO BE DEPOSITED UNDER RULES 85 AND 86 OF ORDER 21 C. P. C. HE CANNOT COME WITHIN THE SWEEP OF MANDATORY PROVISIONS OF RULE 86 OF ORDER 21 C. P. CR BUT NON-DEPOSIT AS A CONSEQUENCE OF WRONG ASSUMPTION OF LAW OR DUE TO NEGLIGENCE IS COVERED BY DEFAULT.

Kamlesh Sharma, J.—By this application the decree bolder bank has prayed that sale of immovable property of the judgment debtors held on 15-11-1988 may be set aside and it may be ordered to be resold on the ground that auction purchaser Surinder Krishan had not deposited 75% of the sale price within 15 days from the date of auction as required under Order 21 Rule 85 C. P. C According to decree holder bank, this sale was effected in favour of the auction purchaser in connivance with the judgment debtors as he is son of judgment debtor No. 4. This application has been resisted by the auction purchaser.

2. This Court has heard learned Counsel for the parties and gone through the record.

3. Mr. K. D. Sood, learned Counsel for the decree holder bank has urged that the provisions of Order 21 Rules 84 and 85 are mandatory and the sale conducted in contravention thereof is nullity and deserves to be set aside and the property in question should be resold. For making this submission, Mr. Sood has relied upon Manilal Mohanlal Shah and others v. Sardar Syed Ahmed Mohamad and another, AIR 1954 SC 349 ; Uttamchand Milapchand v. Balkrlshna Ramnath, AIR 1961 Bom 224; Tapesh Chandra Bagchi v. United Bank of India Ltd and others, AIR 1969 Assam and Nagaland 10 ; Subbammal v. P. Gurusamy Thevar and others, AIR 1974 Mad 278 ; Mool Chand v. Collector, Jalaun and others, AIR 1982 All 141 and Ram Singh v, Uttam Chand, AIR 1985 P and H 35 L

4. On the other hand, Mr. Rakesh Kanwar, learned Counsel for the auction purchaser, has pointed out that the auction purchaser is not at fault in not complying with the provisions of Order 21 Rule 80 C. P. C. as at the time of auction, he had deposited 25% of sale price on the spot and for the remaining amount of sale price r e. 75%, he was directed by the auctioneer, Tehsildar, Palampur that he might deposit after the sale is confirmed by the High Court Thereafter, when the matter was taken up by this Court for confirmation of sale, the decree holder bank objected to it on the ground that the property was sold for less than the upset price fixed by the Court and took two weeks time to file written objections. The decree holder bank failed to file objections and this Court proceeded to confirm the sale on 7-3-1989 and directed the auction purchaser to deposit the balance sale price in the Registry within a period of three weeks. Ultimately the execution petition was dismissed as partly satisfied on 5-9-19^0. Mr. Kan war has shown from the record that for the first time he was informed of the order dated 7-3-1989 by notice dated 19-3-1990, by which date he had already deposited the balance amount of Rs. 15,000 on 2-3-1990 on receipt of another notice dated 27th December, 1989 whereby he was asked to clarify whether he had deposited the remaining auction money or not. In these circumstances, according to Mr. Kanwar, no default has been committed by the auction purchaser making him liable under Rule 86 Order 21 C. P C For making this submission, Mr. Kanwar has relied upon Ramanlal Nagindas Jariwala and etc. v. State Bank of India and others, AIR 1983 Guj 82.

5. Another argument raised by Mr. Kanwar is that the auction purchaser should not suffer for the fault of the auctioneer, the Tehsildar Palampur, who directed him to deposit remaining 75% of the sale price after the sale is confirmed by this Court- The auction purchaser was not negligent and he had deposited the remaining sale price on receipt of notice dated 27-12-1989 whereby only his clarification was sought whether he had deposited the same or not According to Mr. Kan war, even the decree holder bank had remained silent throughout and never pointed out that the auction purchaser was liable to deposit the remaining amount within 15 days from the date of sale, as such it cannot object at this late stage. For urging this, Mr. Kanwar has relied upon Jagat Dhish Bhargava v. Jawahar Lai Bhargawa and others, AIR 1961 SC 832 ; Shastri Yagnapurush-dasji and other