JUDGMENT

J.N. Dwivedi, Member. - Both these appeals have been filed in the same case, and so, they are being disposed of together.

2. I have heard the learned counsel for the parties, and gone through the file.

3. The facts of this case are that Udai Singh and others filed a suit for partition under Sec. 176 of the U.P. Act I of 1951 in respect of the joint Khata of the parties in village Abusarai, Pargana Mangalsi, district Faizabad. The preliminary decree in this case was passed on 18.9.72 and the shares of the parties were determined. Thereafter Udai Singh filed an application for preparation of the final decree. Originally, the total area of the land comprised in the joint Khata was 6 Bighas 9 Biswa 18 Biswani, but some land out of it was acquired by the Government for a bypass road, and so, the area was reduced to 4 Bighas 14 Biswa 8 Biswansi. It was less than 3.125 acre and so, the learned trial court passed an order on 7.2.75 that the land should be auctioned. The auction was held on 29.10.75, and Jagannath Singh was the highest bidder. His bid was accepted, and the auction was confirmed by the trial court on 3.1.1976. In the meantime, an objection was filed by Udai Singh against the auction, stating that the auction was not conducted according to rules, because the proclamation was issued for auction on a particular date, but it was adjourned, but no fresh proclamation was issued. It was also stated that other co-tenants of this Khata had no information, and so, the auction should be set aside. The trial court by its order dated 2.1.1976 rejected the objection of Udai Singh on the grounds that provisions of Civil Procedure Code were applicable, and Order XXI, Rule 90 clearly lays down that where any immovable property has been sold in execution of a decree, the decree-holder or the purchaser or any other person entitled to share in a rateable distribution of assets, may apply to the Court to set aside the sale on the ground of a material irregularity. This rule has been amended by Allahabad High Court's amendment, and it has been laid down that no application to set aside a sale under this rule shall be entertained unless the applicant deposits such amount not exceeding twelve and a half per cent of the sum realized by the sale or furnishes such security as the Court may, in its discretion, fix, except when the court, for reasons to be recorded, dispenses with the requirements of this clause. Since Udai Singh had not deposited twelve and a half per cent of the auction amount, nor any security was furnished, nor any application was submitted explaining the circumstances why he should be exempted from this deposit, his application was rejected. The sale was confirmed. Against this Udai Singh filed two appeals, one appeal was filed against the trial court's order dated 2.1.76 rejecting his objection. A second appeal was filed against the trial court's order dated 3.1.76 confirming the auction. The learned Addl. Commissioner held that the order dated 2.1.76 was perfectly justified inasmuch as it was necessary for the objector to deposit twelve and a half per cent. Reliance was placed on a ruling of the Hon'ble High Court reported in 1960 ALJ 578, in which it has been clearly mentioned that if the amount is not deposited within time, the objection cannot entertained. However, the appeal of Udai Singh against the order dated 3.1.76 was allowed on the grounds that the remaining three-fourth of the auction money was not deposited before the 15th day as required under Order XXI, Rule 85 of the Civil Procedure Code. It is clear that in this case, the three-fourth amount had been deposited on 14.11.75, whereas the 15th day was 13.11.75. Accordingly, the learned Addl. Commissioner has held that the order of the trial court dated 3.1.76 was not proper, and it had no power to confirm the same, and so, the appeal of Udai Singh had been allowed on this ground, and it has been ordered that fresh proceedings for auction should be taken.