Gajendragadkar, J. - (1.) The principal question which this appeal by special leave raises for our decision is:Whether the provisions of O. 21, R. 89 of the Code of Civil Procedure apply to a sale held by a receiver appointed by the court and authorised to sell the property in question. The learned Single Judge on the Original Side of the Calcutta High Court as well as the Division Bench of the said High Court have answered this question in the negative. The appellants contend that the view taken by the Calcutta High Court is erroneous.
(2.) This question arises in this way. In Suit No. 1024 of 1953 on the Original Side of the Calcutta High Court a decree for the payment of Rs. 18,497-15-0 was passed by consent in favour of the New Bheerbhum Coal Co. Ltd., (hereinafter called respondent 1) and against the Banaras Ice Factory Ltd. (hereinafter called appellant 2) on December 5, 1955. The decree provided for the payment of the decretal amount by six equal instalments and it directed that in case of default of any one of the instalments the balance of the decretal dues would at once become payable. A first charge was created by the decree on the plant and machinery of appellant 2 for securing the payment of the decretal amount. A default having occurred in the payment of instalments respondent 1 applied for the execution of the decree on April 10, 1956. On this application an interim order was made on May 17, 1956, appointing Mr. A. K. Sen as Receiver of the properties charged. The said application was finally decided by an order passed on May 30, 1956, by which the appointment of the receiver was confirmed and he was given liberty to sell the said properties either by private treaty or by public auction. It is common ground that the receiver took possession of the said property in December 1956.
(3.) Subsequently, on March 10, 1958; the receiver entered into an agreement with Sukhal Amarchand Vadnagra (hereinafter called respondent 2) for the sale of the said property for Rs. 30,000. The terms and conditions embodied in the said agreement provided inter alia that within one month from the date of the receipt by the purchaser of intimation from the receiver that the sale had been confirmed by the High Court the purchaser shall deposit with the said receiver the full price of Rs. 30,000. On March 31, 1958, respondent 1applied to the court for confirmation of the said agreement and on May 9, 1958, G. K. Mitter J., allowed the application. He ordered that the appellants should deposit the sum of Rs. 3,000 with the attorneys of the decree-holder towards its claim under the said decree and further directed that if the said amount was paid within the time aforesaid and the balance of the decretal amount was paid within ten weeks thereafter the agreement of sale shall not be confirmed. The order further provided that in default of the appellants paying the amounts as directed within the respective due dates the sale of the charged property by the receiver to the second respondent as set out in the agreement shall be confirmed.;