G. C. Mathur. J. - (1.) LALA Ram appli cant No. 1 obtained a simple money decree against Bhajani, opposite party. In execution of the decree, some Bhumidhari land of the judgment-debtor was attach ed. On May 25. 1963, the Munsif (exe cuting Court) ordered the issue of the sale proclamation, fixing September 14, 1963, for the sale. On May 27, 1963, the warrant of sale was issued, directing the Amin to sell the attached property by auction. The Amin was directed to return the warrant by September 16, 1963, with an endorsement certifying the manner in which it had been executed. The Amin held the auction on September 14. 1963. The highest bid of Girraj ap plicant No. 2 of Rs. 1, 200.00 was accepted bv the Amin and. on the same date, Girraj deposited with the Amin a sum of Rs. 300.00. being 25 per cent of the pur chase money. The Amin then returned the warrant together with his report to the Munsif and on September 16, 1963, the Munsif passed an order "bid is ap proved". On October 15, 1963, the judg ment-debtor filed an application under Order XXI. Rule 90 of the Code of Civil Procedure to set aside the sale. On Nov ember 6, 1963. the Munsif dismissed the application as time-barred, holding that it had been filed beyond the period of Limitation of 30 days from September 14, 1963, the dale of the sale. Two dayslater, on November 8, 1963, the Munsif passed the following order:- "Sale dated 14-9-1963 is confirmed. Execution is struck off in full satisfac tion " Against the order dismissing the applica tion for setting aside the sale, the judg ment-debtor filed an appeal. The Dis trict Judge, who heard the appeal, was of the view that the date of the sale was September 16. 1963, the date on which the Munsif approved the bid and that the application for setting aside the sale was filed within 30 days of that date. He ac cordingly allowed the appeal and directed the Munsif to entertain the objection and to decide it on merits. Against this order, the decree-holders and the auction pur chaser have come to this Court in revi sion.
(2.) THE ceal question, which arises for consideration in this case, is whether the date of the sale is September 14, 1963, when the Amin auctioned the attached property, or September 16, 1963, when the Munsif anproved the bid. Under Article 166 of the Limitation Act of 1908, Limitation for making an application under O. XXI, Rule 90 is 30 days from "the date of the sale". Admittedly, the application filed by the judgment-debtor is beyond 30 days from September 14, 1963, but within 30 days from September 16, 1963. In allowing the appeal, the District Judge has observed:- "The Amin has not accepted the bid but he has mentioned in the bid list that a certain bid was the highest bid and then submitted the papers to the learned Mun sif who formally accepted the bid on 16th Sept. It cannot, therefore, be said that the Amin had accepted the bid and the order of the learned Munsif is redun dant." This is incorrect and is not borne out by the record. The record clearly shows that the Amin had accepted the highest bid of Girraj. The warrant of sale issu ed to the Amin directed him to sell the attached property by auction and to report compliance by September 16, 1963. The sale proclamation also states that the attached property will be sold by the Amin. On the Fard Neelam, the Amin has noted down all bids received by him,, including the last bid of Rs. 1.200.00 by Girraj. After the bids, the Amin has stated that no higher bid than that of Gir raj was forthcoming and, therefore, the auction was concluded in favour of Gir-raj for Rs. 1.200.00. On the back of the warrant of sale, the Amin has written out his compliance report. In this report also, he has stated that no higher bid than that of Girraj for Rs. 1, 200.00 was forth coming, that the price offered appeared to be adequate and, therefore, the sale was concluded in favour of Girraj for Rs. 1.200.00. He has further stated that Girrai had deposited Rs. 300.00 in cash towards one-fourth of the sale price and that he had been ordered to deposit the remaining three- fourths of the price, i.e., Rs. 900.00 on or before September 29, 1963. From these facts it is abundantly clear that the Amin had accepted the highest bid of Girraj and had taken the deposit of Rs. 300.00 on account of 25 per cent of the sale price. These reports do not bear out the observation of the District Judge that the Amin had not accepted the bid of Girraj and had merely forwarded the bids for acceptance to the Munsif. Learned counsel for the judgment-debtor has contended that, as a matter of law, the sale was completed only when the Munsif approved the bid and, there fore, it is the date of the approval of the bid by the Munsif which is the date of the sale. In support of his contention, he has placed reliance upon several reported decisions. In all these cases, Order XXI, Rule 84 C.P.C. came up for consideration. This rule reads: "84(1) - On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent on the amount of his purchase- money to the officer or other person con ducting the sale and in default of such deposit, the property shall forthwith be re-sold." In Jaibhadar Jha v. Matukdari Jha, AIR 1923 Pat 525, it was held that it is only when the presiding officer closes the bidding and formally accepts the bid and declares the purchaser that the sale is complete and that mere closing of the bid does not complete the sale. It ap pears from the judgment of this case that the sale was conducted by the Nazir and, after recording the bids, he sent the bid-sheet, in accordance with the practice, to the Munsif who wrote "close" against the last offer and signed the order. There after the auction purchaser deposited one-fourth of the sale price. It is thus clear that the Nazir had not accepted the high est bid and had merely forwarded the bid list for acceptance to the Munsif. In these circumstances, the sale was com plete only when the Munsif accepted the bid and declared the purchaser.
(3.) IN Ratnasami Pillai v. Sabapathy Pillai, AIR 1925 Mad 318, it was held that, when a court sale takes place, the sale in favour of a particular individual is not complete unless and until it receives the confirmation of the Court and that it Is the acceptance of the Court that consti tutes the contract. In this case, the auc tion was held by the Receiver and Ratna sami Pillai was the highest bidder. When the bids were taken before the Court for confirmation, it refused to accept Ratnasami Pillai's bid and directed a re-sale. It appears that, in this case, the Receiver had not accepted the highest bid of Ratna sami Pillai. The contention before the High Court was that Ratnasami Pillai having made the highest bid, there was a concluded contract between him and the receiver. It is this contention which was repelled. Therefore this case also does not lay down any general proposition of law which can be applied to the present case. In Surendra Mohan v. Manmathanath Banerji, AIR 1931 Cal 583the Calcutta High Court, following the decision of the Patna High Court in AIR 1923 Pat 525 (supra), observed: "Though the sale may be made by an Officer of the Court or by any person appointed in this behalf, the sale is a sale by the Court; the officer of the Court, for instance the nazir or any person em powered by the Court, is simply a minis terial officer appointed to carry out cer tain duties imposed upon him by the Court. After the sale is held and com pleted, so far as the bidding is concerned, the matter must be placed before the Court and, under O. 21, R. 84, on every sale the person declared to be the pur chaser shall pay, after such declaration, a deposit of 25 per cent on the amount of his purchase money to the officer con ducting the sale. Accordingly, before such declaration is made, the sale does not become complete and effective and the bidder does not acquire any interest in the property." With great respect, we are unable to aeree with the observation that, after the bidding is completed, the sale officer must in every case place the matter before the Court and that it is for the Court to accept the bid and to declare the pur chaser. The relevant provisions of Order XXI do not support this conclusion. In this case also, it appears that the highest bid had not been accepted by the Nazir and that he had merely forwarded the bids to the Court. It does not appear from the judgment, but this may have been the prevailing practice In Calcutta or it may have been provided for in some rules made by the High Court.;