R. A. Sharma, J - - (1.) FOR recovering loan of Rs. 11,660/- of Punjab National Bank, as arreas of land revenue certain agricultural plots of the respondent no. 4, were auctioned on 30-3-1990. Respondent no. 4 made an application on 26-4-1990 before the Collector Under Rule 285-H of the U. P. Zamindari Abolition and Land Reforms Rules (hereinafter referred to as ZA Rules), for getting the sale set aside on his depositing the amount of arrears and certain other charges prescribed by rules. The Collector on 26-4-1990 itself passed an oroer on this application directing Sub Divisional Officer to consider the request for cancellation of the auction sale as respondent no. 4 is willing to deposit the whole of the arrears and other charges. The Sub Divisional Officer, however, passed order on 2-5-1990 directing thereby the Tahsildar to get the requisite amount deposited by the respondent no. 4. In pursuance of the aforesaid direction the order was passed on 5-5-1990 requiring the respondent no. 4 to deposit the necessary amount and the respondent no. 4 deposited the whole amount on 5-5-1990. Against the aforesaid orders and the deposit of the necessary amount by the respondent no 4, the petitioner, who is the auction purchaser, filed objection before the Commissioner, which had been rejected by the learned Commissioner by order dated September 9, 1990. It is against the aforesaid order that this writ petition has been filed by the petitioner on the ground that as the respondent no. 4 had not deposited the requisite amount within thiry days from the date of auction sale, the sale cannot be cancelled and on the other hand, it is liable to be confirmed in his favour.
(2.) RULE 285-H of the ZA RULEs gives a right to a person whose immoveable property has been sold in connection with realisation of any amount as arrears of land revenue, to apply within thirty days from the date of sale, to have sale set aside on his depositing arrears alongwith five percent of the purchase money and costs of the sale and on making such deposit the Collector is required to set aside the sale. RULE 285-H is quoted below :- "285-H (1) Any person whose holding or other immoveable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collector's office- (a) for the payment to the purchaser, a sum equal to 5 per cent of the purchase money ; and (b) for payment on account of the arrear, the amount specified in the proclamation in ZA Form 74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale have been paid on that account ; and (c) the costs of the sale, on the making of such deposit, the Collector shall pass an order setting aside the sale ; Provided that if a person applied under RULE 285-1 to set aside such sale he shall not be entitled to make an application under this rule". RULE 285-1 provides for an objection within thirty days from the date of sale before the Commissioner, for getting the sale set aside on the ground of material irregularities or mistake in publication or conducting it. RULE 285-1 which deals with confirmation of sale is reproduced as under : "285-1. On the expiration of thirty days from the date of the sale if no such application as is mentioned in RULE 285-H or RULE 285-1, has been made or it such application has been made and rejected by the Collector or the Commissioner, the Collector shall pass an order confirming the sale after satisfying himself that the purchase of land in question by the bidder would not be in contravention of the provisions of Section 154. Every order passed under this rule shall be final". RULEs 285-K and 285-L, being relevant are also quoted below : "285-K If no application under RULE 285-1 is made within the time allowed therefore, all claims on the ground of irregularity or mistake in publishing or conducting the sale shall be barred ; Provided that nothing contained in this rule shall bar the institution of a suit in the civil court for the purpose of setting aside a sale on the ground of fraud". "285-L. Whenever the sale of any holding or other immoveable property is set aside under RULE 285-H or RULE 285-1 the purchaser shall be entitled to receive back his purchase money plus an amount not exceeding five per cent of the purchase money as the Collector or the Commissioner as the case may be, may determine". RULE 285-H provides for making an application within thirty days from the date of sale, to have sale set aside on depositing the necessary amount and after the above deposit is made the Collector has got to pass an order setting aside the sale. This rule although provides thirty days period for making an application, but does not prescribe any period for depositing the necessary amount. No other rule has prescribed any period for depositing the amout referred to under RULE 285-H. In this connection reference may be made to Order 21 RULE 89 and 92 of the Code of Civil Procedure, where somewhat identical provisions have been made for setting aside the sale held in execution of a decree. RULEs 89 and 92 of order 21 of Civil Procedure Code are reproduced below : "89. Application to set aside sale on deposit:-(1) Where immoveable property has been sold in execution of a decree (any person claiming an interest in the property sole at the time of the sale or at the time of making the application, or acting for in the interest of such person) may apply to have the sale set aside on his depositing in Court- (a) for payment to the purchaser, a sum equal to five percent of the purchase money, and (b) for payment to the decree holder, the amount specified in the proclamation of sale as that for the reccovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. (2) Where a person applies under RULE 90 to set aside the sale of his immoveable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale". "92. Sale when to become absolute or be set aside-(1) Where no application is made under RULE 89, RULE 90 or RULE 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute ; Provided that, where any property is sold in execution of a decree pending the final deposit of any claim, or any objection to the attachment of, such property, the Court shall not confirm such sale untill the final disposal of such claim or objection. (2) Where such application is made and allowed, and where, in the case of an application under RULE 89, the deposit required by that rule is made within thirty days from the date of sale, or in cases where the amount deposited under RULE 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale ; Provided that no order shall be made unless notice of the application has been given to all persons affected thereby : (3) No suit to set aside an order under this rule shall be brought by any person against whom such order is made. (4) Where a third party challenges the judgment debtor's title by filing a suit against the auction purchaser the decree-holder and the judgment debtor shall be necessary parties to the suit. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered". Rule 89 of Order 21 CPC like Rule 285-H of the ZA Rules provides for making of an application by judgment debtor for getting the sale set aside on his depositing the requisite amount in the courts This rule does not provide for any limitation for making an application for setting aside the sale on deposit, but Article 127 of the Limitation Act fixes the period of thirty days for making of such an application. This period of thirty days has now been raised to sixty days. Although rule 89 of Order 21 CPC of Provisions of the Limitation Act do not fix any period for depositing the amount, even though the application is required to be made within thirty days from the date of sale, but Rule 92 (2) has fixed the period of thirty days from the date of sale for depositing the amount. In view of Rule 92 (2) of Order 21 CPC if deposit is not made within thirty days, the court can not set aside the sale even if the application has been made within time. Under the aforesaid provisions of Civil Procedure Code application as well as deposit are required to be made within the aforesaid time. But there is no such provision in the ZA Rules like Rule 90 (2) fixing the period for depositing the requisite amount mentioned under Rule 285-H, although application under Rule 285-H is to be made within thirty days from the date of sale. Comparision of the language of ZA Rules 285-H and Rule 92 (2) of Order 21 of Civil Procedure Code makes the position clear. As mentioned herein before Rule 92 (2) of Order 21 CPC provides that "where, in the case of an application under Rule 89 deposit required by that Rule is made within thirty days from the date of sale....... ....... the court shall make an order setting aside the sale". On the other hand ZA Rule 285-H without fixing aay period for deposit requires, "on the making of such deposit, the Collector shall pass an order setting aside the ale" (Emphasis supplied). It is thus obvious that under CPC sale has got to be set aside if the application and deposit are made within thirty days from the date of sale. This limitation does not find place in ZA Rules where the sale is required to be set aside on the making of the deposit. It is thus clear that if a person concerned whose property has been sold has moved an application under Rule 285-H within thirty days from the date of sale it is not necessary to diposit the amount within the same period, but the deposit has to be made by such person within the time granted by Collector or any other officer acting for and on behalf of Collector. In the instant case respondent no. 4 has made the application within thirty days under Rule 285-H and he deposited the whole amount on 5-5-1990 i.e. the date on which order was passed requiring him to make the deposit. Deposit so make by the respondent no. 4 was perfectly valid and jastified and the submission of the learned counsel for the petitioner that as the deposit was not made within thirty days from the date of sale, the sale is bound to be confirmed, cannot be accepted. In this connection learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court in the case of Indu Engineering And Textiles Ltd. v. Commissioner, Agra Division Agra, 1985 RD 299. In this case of Indu Engineering sale took place on 28-12-1979 and highest offer was accepted on 15-1-1980. As there was no objection under Rule 285-H and 285-J on ZA Rules the sale was confirmed and on 12-2-1980 the sale certificate was also issued. An objection was filed on 25-1-1980 after the sale was approved but before it was confirmed on 11-2-1980. This objection was rejected on 2-2-1980 but after the confirmation of sale another objection was filed before the Commissioner on 4-3-1980 and an additional objection was also filed on 13-5-1980. A writ of prohibition was filed in this court on the ground that it is not open to Commissioner to entertain any objection after thirty days from the date of sale. This plea was upheld by this court by holding that period of thirty days fixed by Rules 285-H and 285-1 for making the application cannot be extended and provisions of Section 5 Limitation Act do not apply to the proceedings under these rules. Relevant extract from this judgement is quoted below :- "A sale is confirmed under Rule 285-J which provides that on expiration of thirty days from the date of sale if no such application as is mentioned in Rule 285-H or Rule 285-1 has been made or if made is rejected by the Collector or the Commissioner, the Commissioner shall pass as order confirming the sale after satisfying himself that the purchase by the bidder would not be in contravention of the provisions of Section 154, of the U. P. Zamindari Abolition and Land Reforms Act, and every order passed under this Rule shall be final. The nature of the proceedings under the provisions aforementioned suggests that the period of thirty days is a fixed schedule for the filing of an application for the setting aside of the sale ; and the provisions of Section 5 of the Limitation Act do not seem to apply to the proceeding under Rule 285-1 as the Commissioner does not act as a court under that provision".
(3.) IN this case the question about period for deposit was not involved and was neither raised nor decided and the only question which was raised and decided was whether an application under Rule 285-H or 285-1 for getting the sale set aside, could be made after thirty days from the date of sale. In the instant case the respondent no. 4 had made application within thrity days from the date of sale for getting the sale set aside on his deposit regarding which he made the offer. The Collector passed an order on 26-4-1990 whereby the application was transmitted to the Sub Divisional Officer with the observation to the effect that the question of cancellation of sale may be considered as the said respondent is willing to deposit the necessary amount. The Sub Divisional Officer passed an order on 2-5-1990 directing the Tahsildar to get the amount deposited and thereafter it was on 5-5-1990 that the order was passed, requiring the respondent no. 4 to make the deposit and the deposit was made by the said respondent on the same date. The respondent no. 4 has done every thing within thirty days and if the amount was not deposited within the aforesaid period it was on account of the act and omission on the part of Collector. A person can only express willingness and make offer to deposit, but no deposit can be made unless an order to that effect is passed by the Collector. If this deposit made by the respondent no. 4, on 5-5-1990 is not accepted it will amount to making him to suffer for the act, and omission of the Collector. It is well settled principle that no person can be allowed to suffer bscause of mistake of the court or on account of irregularities in the procedure for which he is not responsible. In this connection reference may be made to the case of A. R. Antuley v. R. S. Nayak, AIR 1988 SC 1531 in which Supreme Court observed as follows : "No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities Rules or procedures are the hand maids of justice and not the mistress of the justice. Ex debite justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied". This case has been followed by Supreme Court in the case of Chinnammal v. P. Arumugham, AIR 1990 SC 1828.;