Decided on February 10,1969

OM PRAKASH Respondents


- (1.) THIS revision arises from an execution proceeding and is directed against the setting aside of sale under Order 21, rule 90, Civil Procedure Code.
(2.) THE judgment-debtor mortgaged the property in dispute to the appellant decree-holder. It was a mortgage with possession. THEre was a lease-back from the mortgagee to the mortgagor. A decree for arrears of rent was passed against the mortgagor-tenant in favour of the mortgagee landlord. In execution of that decree, the mortgaged house was put to sale. On February 17, 1966, the property was knocked down to one Girdhari'al for his highest bid of Rs. 9,250. But he did not deposit 25% of the purchase money as required under Order 21, rule 84, Civil Procedure Code. The auction was then continued on different dates from February 24 to March 25, 1966. Ultimately the property was knocked down to Brijlal for Rs. 7,500 on March 25, 1966. The judgment-debtor filed an application under Order 21, rule, 90, Civil Procedure Code, for setting aside the sale on various grounds. The executing Court dismissed all the objections. But, on appeal, the Learned Additional District Judge, Gwalior, set aside the sale on two grounds: (1) A fresh proclamation of sale was not issued, when the property was put to re-sale, and (2) the executing Court had not decided the judgment-debtor's objection, which he had filed on May 1, 1965. Aggrieved by the appellate order setting aside the sale, the decree-holder preferred this revision.
(3.) IT is contended for the petitioner that a fresh proclamation is not necessary, when the property is resold under Order 21, rule 84, Civil Procedure Code. Learned counsel for the judgment-debtor, on the other hand, contends that firstly, a fresh proclamation was mandatory as required by Order 21, rule 87. Secondly, in the present case a fresh proclamation was necessary because the property was not resold "forthwith as required under Order 21, rule 84, Civil Procedure, but it was a fresh sale altogether as it was held subsequently ; and since there was no fresh proclamation of sale, which was imperative, the subsequent sale was a nullity. The scheme of the relevent rules is that as soon as a person is declared to be the purchaser, he must pay immediately a deposit of 25 percent on the amount of his purchase money (rule 84). He has to pay the balance on or before the 15th day from the sale (rule 85). In default of payment of the 75 percent as required by rule 85, the consequences are : (a) the deposit may be forfeited; and (b) the property shall be resold (rule 86). It is then provided in rule 87 that every resale of immovable property, in default of payment of the purchase money within the period allowed by such payment, shall be made after the issue of a fresh proclamation. The words "within the period allowed for such payment" make it quite clear that rule 87 refers to the default under rule 85, the consequences of which are provided in rule 86. The words "within the period allowed for such payment" in rule 87, exclude its application to rule 84, because the letter requires the payment of deposit of 25 per cent "immediately after such declaration"; there is no "period allowed for payment". This was also the view taken in Pragdas v. Beniprasad,. A I R 1937 All. 556. It is provided in Order 21, rule 84, Civil Procedure Code, that as soon as the property is knocked down to the highest bidder, and he is declared the purchaser, he must deposit on the spot 25 per cent of the purchase money. If he does not, the property must be resold forthwith. It is conspicuous enough that in this rule, there is no direction for issuance of a fresh proclamation. This is obviously so because of the force of the word "forthwith." Since the property has to be resold with reasonable speed and expedition, a fresh proclamation as required by Order 21, rule 67, Civil Procedure Code, is not contemplated. The language of rule 87 is in contrast with that of rule 84. The object of issuing a proclamation of sale is to let the intending purchasers know what property is going to be sold and when, so that they may take part in the auction and offer their bids. That is why rule 87 requires a fresh proclamation but not rule 84 which envisages resale "forthwith".;

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