ADIT PRASAD Vs. SHEO MANGAL
HIGH COURT OF ALLAHABAD
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Satish Chandra, J. -
(1.)THE decree-holder has filed this appeal. He obtained a decree no. 338 of 1950 for Rs. 513. In due course he put tt in execution for a total sum of Rs. 716.34 including costs. THE property in dispute was put up for auction. THE auction was held on 29th April 1960 and at the auction the decree-holder was the highest bidder. He purchased the property for Rs. 1500/-.
(2.)THE officer holding the auction finding that there was only one bidder did not accept the bid of the decree-holder but left it for the Court to accept it or not. On 2nd May 1960 the judgment-debtor deposited the entire amount due under the decree i.e. the decretal amount as well as execution costs, in the execution Court. THE same day the file was put up before the execution Court with respect to the auction Sale THE Court did not pass any specific order accepting the bid of the decree-holder, but made an order that the file be put up after a month for confirmation of the sale.
It is worthy of note that by 2nd May 1960 the decree-holder had not made any payment towards his bid of Rs. 1500/- He had neither filed the receipt for the decretal amount nor paid the 25 per cent of the bid All this was done on 11th May 1960. In due course the sale was confirmed on 8th July 1960. The judgment-debtor then woke up, and filed an objection under Section 47 C. P. C. on 22nd July 1960.
Both the courts have upheld the objection and have set aside the sale. Hence this appeal by the decree-holder.
(3.)IT is urged for the appellant that the objection was not maintainable as, in substance, the objection was under Order 21 Rule 89 C. P. C. and as the judgment-debtor had not deposited the relevant five per cent of the auction money the objection was not competent. The learned counsel has urged that the objection cannot be treated as one under Section 47 C. P. C. as it was filed after the confirmation of the sale.
On 2nd May 1960 when the judgment-debtor deposited the entire decretal amount the sale had not been completed. The decree-holder's bid had not been accepted till then by any specific order of the execution Court. The order of the execution Court that the file may be put up after a month for confirmation of sale does not necessarily mean that the attention of the Court was invited to the fact that the officer conducting the sale had not accepted the bid and had left the matter open for consideration by the Court. If the Court's attention was invited to this fact it is reasonable to expect that the Court would have passed some order after considering the facts. It could have as well refused to accept the bid on the ground that there were not enough bidders at the auction. I am, therefore, not inclined to agree with the submission that on 2nd May 1960 the Court had accepted the bid.
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