A.P. Srivastava, J. - (1.) THE circumstances in which this application in revision has arisen may be briefly stated. Rai Saheb Ram Prasad Gupta and others decree -holders had a decree against Banwari Lai and others and in execution of that decree a sugar mill was to be sold. On 30 -10 -1954 the Court directed the sale of the property and appointed a firm known as Clearance and Company, Kanpur to hold the auction. It provided in the deror; It will be paid 3 per cent, of the sale price as charges for conducting the sale. This will include advertising and other charges. The sale will be held after giving due publicity in the papers and ... by other means. After this order other auctioneers offered to conduct the sale on more favourable terms and were prepared to accept commission at a lesser rate. Ultimately the auction was entrusted to the present applicants Messrs. Emron and Son, a firm of auctioneers, and their commission was fixed at the rate of one per cent. The property ordered to be sold was sold through the applicants and the highest bid offered was Rs. 6,00,000. One -fourth of the amount was paid immediately to the applicants and the balance was subsequently deposited in Court. Out of the 25 per cent of the purchase money which was paid to the applicants they deducted Rs. 6,000 and deposited the balance in Court. They retained Rs. 6,000 as commission due to them at the rate of one per cent. An application was subsequently made by the judgment -debtors for setting aside the sale and the sale was actually set aside. Messrs Beg Southerland and Company, Ltd., present opposite party No. 1, had offered the highest bid of Rs. 600,000 and had paid one -fourth of the amount to the applicants as auctioneers and had deposited the balance in Court. After the sale had been set aside the auction -purchaser applied to the Court under Or.XXI, R. 93 Code of Civil Procedure for the refund of the purchase price. As the whole amount had not been deposited by the applicants in Court a question arose as to how the purchase money was to be refunded to the auction -purchaser. The question was considered by the executing court and by the order now sought to be revised it held that as the sale had not been confirmed the applicants could not claim commission at the rate of one per cent on the sale price and could only get the actual publicity and advertisement charges and other incidental expenses which could be considered to be costs in execution payable by the decree -holders. It therefore directed the applicants to pay the sum of Rs. 6,000 retained by then, to the auction -purchaser Messrs Begg Sutherland and Company Ltd. of Kanpur by a fixed date and directed further that in case of failure the auction -purchase would be entitled to recover the amount from them. It is against this order that the present application in revision has been filed by the applicants auctioneers. The contention urged on their behalf is that they were entitled under the terms of their appointment to the full amount of Rs. 6,000 and the learned Civil Judge had no justification for directing them to repay the amount to the auction -purchaser.
(2.) THE only persons impleaded as opposite parties to this application were the auction -purchasers Messrs. Begg Sutherland and Company Ltd., Rai Saheb, B. Ram Prasad Gupta, one of the decree -holders and Banwari Lal, one of the judgment -debtors. There were several other decree holders and judgment -debtors but they were not impleaded. On objection being raised about their not being impleaded an application was made for impleading them as opposite parties out was rejected by this Court. The application is opposed on behalf of the auction -purchaser on the ground that under Or. XXI, R. 93, Code of Civil Procedure the auction purchaser is entitled to get back the entire purchase money irrespective of the person in whose hands the amount may be found. The auction -purchaser was therefore entitled to get the whole sum of Rs. 6,00,000 it had paid and if any part of the amount was in the hands of the applicants the applicants were bound to repay the same. Both on behalf of the auction -purchaser and the decree -holder who has been impleaded it is urged that as the sale held by the applicants was not ultimately confirmed there was no question of the applicants getting any commission at the rate of one per cent, on the sale price. The utmost that they could claim was the amount spent by them in incidental charges and advertisement etc. and the learned Civil Judge has already directed that to be paid to them. No reasonable exception can therefore be taken to the impugned order. After carefully listening to everything which the Learned Counsel for the parties have to say I have come to the conclusion that this application in revision must fail. This is so mainly for three reasons: In the first place, though in the order appointing the applicants as auctioneers there was no specific mention as to on what basis the commission was to be paid to them that order has to be read along with the earlier order dated 30 -10 -1954 by which the property had been directed to be sold. Another person had been appointed as auctioneer by that order but it had been clearly provided that the commission payable will be three per cent of the sale price. The subsequent order appointing the applicants modified that earlier order only in respect of the rate of commission. There was no modification about the basis of the calculation of the commission. It must in the circumstances be held that the commission which was payable to the applicants was also to be calculated on the basis of the sale price. This being so, it follows by necessary implication that the intention was that the commission would be payable to the applicants only if the sale was ultimately upheld. In other words the commission could be claimed by the applicants if the sale was confirmed and the purchase price was in the hands of the Court out of which the commission could be paid. In the present case the sale was admittedly set aside and under Or. XXI, R. 93, Code of Civil Procedure the auction -purchaser was entitled to get back the whole of the purchase money paid by him without any deduction. There was therefore nothing out of which the commission could be paid to the applicants. When the applicants agreed to hold the auction they must have been aware of the position that it was possible for the sale to be set aside. When they agreed to accept a commission calculated on the basis of the sale price they must have known that they were taking a risk and could get the amount only if the sale was ultimately confirmed and would get no commission if the sale on any account fell through. In the present case the executing Court has been very fair to the applicants and in spite of the sale having been set aside has directed their actual expenses and incidental charges to be paid as costs of execution. It cannot in the circumstances be held that the applicants were appointed and agreed to work at auctioneers on the condition that they would get their commission whether the sale was actually upheld or set aside.
(3.) SECONDLY , provision is to be found for payment of commission to auctioneers in the General Rules (Civil). R. 15 of Chap. XVII of those rules provides for cases in which a sale is held not by the Court Amin but by an auctioneer. The rule provides for payment of poundage on sales held and the last but one clause of it is as follows: When a sale is made under either R. 65 or R. 76 of Or.XXI, of Act No. v. of 1908 by a person other than an officer of the Court, an Amin or a Collector, the procedure in this rule before prescribed shall be followed, but the amount of the poundage if to be paid in stamps shall be the full amount chargeable under R. 2, less the amount of such person's commission. Such commission shall be payable out of the sale -proceeds next after the payment mentioned in the second proviso of this rule. This makes it clear that the commission payable to the auctioneer is really paid out of the poundage money. If the sale is held by the Collector or by the Civil Court Amin the entire poundage has to be credited to the Government in stamps. If, however, the sale is held by a person other than an officer of the Court an Amin or a Collector and a commission has to be paid to him that commission is to come out of the amount of poundage and the amount of poundage credited to the Government will be the full amount of the poundage minus the amount of Commission. From this also it follows that in such cases the commission is to paid when poundage becomes due. Poundage becomes due only when the sale is confirmed because there is a proviso to R. 15 which expressly lays down that no poundage is payable if the sale is set aside under Or. XXI, Rr. 90 and 91. In the present case the sale having been set aside under Or. XXI, R. 90 no poundage was payable and if no poundage was payable no commission would be paid to the auctioneer out of it.;