SIRI BHAN Vs. JIT SINGH

JUDGEMENT

(1.) This appeal is directed against an order of District Judge, Bhatinda setting aside an order of the executing court dismissing judgment-debtors' objections to an execution sale.

(2.) In execution of his money decree Bhan Appellant got agricultural land of Jit Singh and Gian Singh Respondents the judgment-debtors, attached and sold in his favour. The sale was confirmed on 9-10-1953. On 10-12-1954, the judgment-debtors brought an application under Sections 47 and 151, Code of Civil Procedure, for setting aside the sale on a number of grounds. One of them was that the auction-purchaser did not deposit one-fourth of the sale price immediately and the remaining three-fourth within the prescribed period' of fifteen days after the sale. The application was resisted by the decree-holder and it gave rise to as many as fifteen issues. The first of these was, "Does this application lie and can it be heard and decided by this Court - The executing court, without going into the rest of the issues, decided the issue against the judgment-debtors and dismissed the application. Learned Sub-Judge held the view that after sale was confirmed the executing court be-came functus officio to go into any illegality or regularity in the conduct of the sale. Judgment-debtors' appeal against this order was accepted by the District Judge and the case remand-to the executing court for decision of the other issues .

(3.) I have no hesitation to agree with Shri D.S Nehra, learned Counsel for the Appellant of the objections taken by the judgment-debtors way possibly relate to the conduct of the sale and therefore they are such as could not be raised by the judgment-debtors after confirmation of the sale. But so far as the objection regarding the failure to comply with the provisions of Order 21, Rules 84 and 85, Code of Civil Procedure, is concerned, I do not think it related merely to an irregularity in the sale or that it could only be raised under Order 21, Rule 90, Code of Civil Procedure, before the sale was confirmed. It has now been finally laid down by their Lordships of the Supreme Court in Maffiilal Mohanlal Shah V. Sardar Sayed Ahmed , 1954 AIR(SC) 349 (A), that the provisions of Order 21, Rules 84, 85 and 86, Code of Civil Procedure, requiring the deposit of 25 per cent, of the purchase-money immediately and the payment of the balance within fifteen days of the sale, are mandatory and that upon non-compliance with these provisions there is no sale at all. Rules 85 and 85 of Order 21 required that the property shall be resold on default by the person to deposit- 25 per cent, immediately when he is declared to be purchaser and' the balance within fifteen days of the sale. No discretion in the matter is left with the court. The very fact that the court is bound to resell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. The sale ought to be regarded as having never taken place so as to pass any title to the purchaser. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. When the sale from its very inception is a nullity and' it ought to be regarded to have never taken place, there remains nothing to be confirmed. Subsequent order of its confirmation cannot give life to or validate a transaction that never existed in the eye of law or was ab initio void.