1977 Supreme(MP) 358

IN THE HIGH COURT OF MADHYA PRADESH
B.R. DUBE, J.
Nuruddin - Appellant
Vs.
Sardar Ishwarsingh and another - Respondents
C. Revn. No. 476 of 1976 (I)
Decided On : 13-04-1977

Headnote:(1) Civil Procedure Code, 1908 - O. 21. R. 84 - auction sale can be revoked under the provisions of order 89, 90 and 91 - auction purchaser depositing sale amount under Order 21, rule 84 - executing Court has no jurisdiction to order resale.

       (2) Civil Procedure Code, 1908 - S. 115 - executing Court ordering resale under a lame excuse - interference under S. 115 made.

       Short Note

       1. The revision arose out of the order dated 6 - 5 - 76 whereby the Executing Court, set aside the auction sale and directed the house under attachment to be re - auctioned. The Executing Court also ordered that the amount deposited by the auction purchaser shall he refunded to him.

       Held : Order 21, rule 84 CPC provides that on every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty five per cent on the amount of his purchase money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be resold. The auction purchaser - non applicant No. 2 having made the deposit as required by Rule 84 of Order 21, there was no question of reselling the property. Rule 85 provides that the full amount of purchase money payable shall he paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property. The auction purchaser non - applicant No. 2 has deposited the full amount in compliance with the said provision as well. Hence there was no scope to follow the procedure as laid down in Rules 86 and 8 for putting the house in question to resale. Rules 89, 90 and 91 make provision for filing applications to set aside the sale on the grounds mentioned in those rules. No such application was made under Rules 89, 90 or 91, the Court shall make an order confirming the sale and thereupon the gale shall become absolute. It is true that a formal order as regards the confirmation of the sale has not been passed by the Executing Court. But in the absence of any application under Rules 89, 90 or 91 the sale becomes absolute and the Executing Court has simply to pass a final order as regards the confirmation of sale. It may be noted that the auction purchaser under rule 91 can make an application to set aside a sale only on the ground that the judgment debtor had no saleable interest in the property. That being not the position, the auction purchaser cannot revoke the sale simply by his whim or on some lame excuse. The decree - holder under rule 90 can also make an application to set aside the sale on the ground of irregularity or fraud. The decree - holder non - applicant No. 1 has not pleaded any such fact in his application. The Executing Court therefore, had no jurisdiction to set aside the sale and direct the refund of the sale price to the auction - purchaser. As the Executing Court exercised the jurisdiction not vested in it, this Court in revision must interfere in the impugned order. Revision allowed.