Decided on February 14,1963



Rao Ekbote, J. - (1.) This revision petition arises out of E.A. No. 896 of 1959 filed by the auction-purchaser for the refund of 1/4th amount which he had deposited and for the payment of solatium which the judgment-debtor deposited under Order 21, Rule 89. This application was resisted both by the decree-holder and judgment-debtor on the ground that the auction-purchaser has not complied with Rule 85 of Order 21 and that therefore he is not entitled to the solatium amount.
(2.) The learned District Munsif, Nellore, rejected the petition as far as the solatium amount is concerned, but allowed the auction-purchaser to withdraw the amount which he had deposited through a separate cheque petition. It is this view of the District Munsif which is questioned by the auction-purchaser before me in this revision petition.
(3.) It is true that the auction purchaser has not deposited the full amount of purchase money payable and the general stamp for certificate under Rule 94 or any other amount required under Rule 85. But it does not necessarily follow that he is not entitled to the solatium. The auction was held on 29/06/1959. According to Rule 85 of Order 21 the auction-purchaser ought to have deposited the full amount of the purchase money within 15 days from the date of the sale, that is, on or before 14/07/1959. Before the last date expired the judgment-debtor served the auction-purchaser with a notice on 13-7-1959 informing him that he is filing an application under Order 21, Rule 89. Afterwards the judgment-debtor did file that application. As the decree-holder or the auction-purchaser did not oppose that application, it was allowed on 5-9-1959. The judgment-debtor while filing the application under Order 21, Rule 89 deposited for payment to the purchaser a sum equal to 5 per cent of the purchase money. After the sale was thus set aside the auction-purchaser sought to get the solatium amount. I fail to understand how he is not entitled to get this amount. It does not lie in the mouth of the judgment-debtor to say that the auction-purchaser is not entitled to that amount because he has failed to deposit the amount within 15 days as per Rule 85. The judgment-debtor had issued a notice on 13-7-1959. It was natural that thereby a belief was created in the auction-purchaser that he need not deposit the amount as the judgment-debtor is moving to get the sale set aside. The judgment-debtor or the decree-holder did not object to the course which the auction-purchaser followed till the last date when the application filed by the judgment-debtor was allowed on 5-9-1959. Even today it is not contended that the application filed by the judgment-debtor does not fall under Order 21, Rule 89. There is no other rule under which the sale once held could have been set aside on the petition of the judgment-debtor. If the auction-purchaser had failed to deposit the amount under Rule 85, it was open to the Court to adopt the course indicated by Rule 86 of Order 21. Admittedly the non-deposit of the full amount under Rule 85 by the auction purchaser was not treated by anybody as a default for the purpose of Rule 86. Consequently no action either under Rule 86 or Rule 87 was taken by the decree-holder or the Court, it is clear that all the parties believed that the course adopted by the judgment-debtor in moving the application under Order 21 Rule 89 is genuine and valid and, if allowed, the auction-purchaser would certainly be entitled to the amount mentioned in that rule. It must be remembered that the provisions of Rule 85 are enacted for the benefit of the judgment-debtor and the decree-holder and they can certainly waive it. Thus where the failure in depositing the price in Court on or before the due date is brought about by consent, express or implied, of the judgment-debtor and decree-holder and the order to set aside the sale was obtained by the judgment-debtor himself, the auction-purchaser cannot be blamed or allowed to suffer if he has acted on the faith of the judgment-debtor with the result that the period of 15 days came to pass. The judgment-debtor cannot in such a case be allowed to turn round and claim advantage arising out of the non-deposit of purchase money which was occasioned by his own act. It is true that the provisions of Rule 85 are mandatory and even if a petition to extend the time had been fifed the time could not have been extended. It must, however, be noticed that the amount deposited was and is not forfeited but directed to be paid to the auction-purchaser. No order under Rule 86 for reselling the property was made. All the parties treated the sale to exist and that is why the judgment-debtor filed an application under Rule 89. If the parties had taken a stand that because of the default committed by the auction purchaser there was no sale within the contemplation of Rule 85 or Rule 86, then there was need for the judgment-debtor to file an application to set aside the sale under Order 21 Rule 89. The sale was, however, set aside only under Rule 89 and if that rule entitled the auction-purchaser to receive the amount in case the sale is set aside under that rule, I do not know why the District Munsif felt the necessity of going behind the order passed under Order 21, Rule 89. I was not referred to any authority which compels me to take a view that an auction-purchaser who does not deposit the amount under Rule 85 under the circumstances mentioned above, is not entitled to receive the amount of 5% mentioned in Rule 89.;

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