Shinde, C.J. - (1.)THIS is auction purchaser's revision against the order of the execution Court dated 6 -9 -1954. The facts of the case are briefly as under:
(2.)ONE Rameshchandra was the decree holder. He obtained a decree against Dulichand and Ors. . That decree was executed and in the execution of the decree a house belonging to the judgment debtor was put up for sale. On 9 -4 -54, the Nazir who was the officer appointed under Order 21, Rule 65, Code of Civil Procedure closed the bidding by accepting an offer of Rs. 9,530, made by Ramkrishna in anticipation of sanction by the Court and deposited Rs. 2,383 in the Court. The Court passed an order that the money be credited.
On 2 -4 -1954, in an appeal filed by the judgment debtor the appellate Court passed an order that the sale may not be made absolute, until the decision of the appeal. This appeal was dismissed on 13 -7 -1054. (in 7 -8 -1954 the judgment debtor deposited in Court the decretal amount of Rs. 2,240. On 13 -8 -1954, the judgment -debtors filed an application under Order 21, Rule 89, Code of Civil Procedure , to set aside the sale.

That application was accepted and on 6 -9 -1954 the execution Court ordered the judgment debtors to deposit 5 percent. for payment to the purchase and also the balance due to the decree -holder. Against this order the auction purchaser has filed this revision.

Mr. Patankar learned Counsel for the applicant raised three contentions. His first and important contention is that the sale took place on 9 -4 -195 Consequently the application of 7 -8 -1954 is time barred. Order 21. Rule 89 runs as follows:

Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court,

(a)for payment to the purchaser, a sum equal to five per cent of the purchase -money, and

(b) for payment to the decree holder, the amount specified in the proclamation of sale 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 received by the decree -holder....

Article 166, Limitation Act prescribes the period of 30 days from the date of the sale. Unless, there lore, the application of 7 -8 -1954 is filed within 30 days from the date of the sale it will be time barred. We have; therefore, to see on what date the sale was completed. The learned Counsel for the applicant contends that the sale was completed on 9 -4 -1954. As already pointed out the bidding was, no doubt, closed by the Nazir in anticipation of sanction by the Court and 25 per cent, of the purchase money was deposited by the auction purchaser. Order 21, Rule 84 reads as follows:

On every sale of immovable property the person declared to be 'the purchaser shall pay immediately alter such declaration a deposit of twenty five per cent, on the amount of his purchase money to the officer or other person conducting the and in default of such deposit, the property shall forthwith be resold.

The person to be declared purchaser under this rule is the bidder whose bid has been accepted. Unless and until the bid has been accepted, a person cannot be said to be declared. It has also been held by various High Court that there is no sale till the bid has been competent authority. In 'Jaibhadar Jha v. Matukdhari Jha' : AIR 1923 Pat 525 (A), a Division Bench of the Patna High Court observed as follows:

Equally when the auction is not held, in his presence (in the presence of the Presiding Officer) the Presiding Officer is still in charge of it, and officer conducting the sale is in no more responsible position than if' he were conducting it in Presence of the Presiding Officer.

That the sale may be completed, not only the order of the Presiding Officer to close the bidding, also his order under Order 21,Rule 84 formally accepting the bid and declaring the purchaser is required, exactly as in sale proceedings conducted his presence.

In this case although 25 per cent of the price I been deposited by the bidder and the Munsiff had written "close" on the bid sheet, it was held that the sale was not complete as the Presiding Officer had not accepted the bid and declared the purchaser under Order 21, Rule 84. In '. Ratnasami Pillai v. Sabapathy Pillai', AIR 1925 Mat 318 (B), 1 Division Bench of the Madras High Court held follows:

When a Court sale takes place, the sale in favour of particular individual is not complete unless and until it receives the confirmation of the Court. It is the acceptance of the Court that constitutes the contract.

In 'Radhey Lal v. Mt. Janki Devi' : AIR 1935 All 204(C), a Division Bench of the Allahabad High Court held that where the bidder at a Court auction files an application before the sale has been sanctioned by the Court, that the Court should not enforce the sale on the ground that he bid under a misapprehension as to the property purchased and the Court believing him, orders return of the deposit made, by him, the Court is not guilty of material irregularity in exercise of jurisdiction. In'Surendra Mohan Sarkar v. Manmathanath Banerji' : AIR 1931 Cal 583(D), a Division bench of the Calcutta High Court hold as follows:

The sale of the property in an auction held by Court does not become complete before its acceptance by the Court,

The same learned Judges further observed:

After the sale is held and completed, so far is the bidding is concerned, the matter must be Placed before the Court and. under Order 21, Rule 84, on every sale the person declared to be the purchased shall pay, after such declaration, a deposit of percent, on the amount of his purchase money of the officer conducting the sale. Accordingly before such declaration is made the sale does not complete and effective and the bidder does not acquire any interest in the property.

In'Subbaraya Mudaliar v. Sundararajan' : AIR 1951 Mad 986 (E), a Division Bench of the Madras High Court observed as follows:

Merely by reason of the fact that a person the highest bidder at the auction sale conducted by the receiver under orders of the Court, the person does not obtain any enfoceable right to the property sold at the auction. The condition as regards confirmation of the Court is a safeguard against property being sold at an inadequate price.

It will, therefore, be not only proper but necessary that the Court in exercising the discretion which it undoubtedly has of accepting or refusing, to accept highest bid at the auction in pursuance of its orders, should see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud.

(3.)SOME High Courts have, no doubt, taken, contrary view. In'Mahomed Yacoob v. P.L.R.M. Firm', AIR 1932 Rang 17 (F), lire view taken by the Patna High Court in : AIR 1923 Pat 525 (A), has not been accepted. But the learned Chief Justice made the following observation in the course of the judgment:
Of course, if there is a rule of practice in the Court that the officer conducting the sale shall not be entitled to accept a bid or conclude the sale, and, that such officer is given authority merely to record the bids and forward the bid sheet to the Court in order that the Court may accept or reject the bids or any of them, it follows that no sale takes place until the Court has accepted the bid.

If, therefore, the officer conducting the sale has no authority to accept a bid or conclude the sale, the sale is not complete until die bid is accepted by the Court. That is exactly the position in Madhya Bharat. From the report of the Nazir it is clear that he has no authority to - accept a bid or conclude the sale. Therefore, the decision given in 'Mahomed Yacoob v. P.L.R.M.Firm",(F), is not applicable to the present case. In 'Lokman Chhabilal Jain v. Motilal Tulsiram, AIR 1939 Nag. 269 (G), a Division Bench of the Nagpur High Court field as follows:

In the Central Provinces a time is set aside during which persons may make their bids which are entered in a list. When that time is up, the highest bidder is declared by the officer conducting, the auction, to be the purchaser. It is not the practice for the officer conducting the sale merely to take the list of bidders to the Judge and ask the Judge to declare who is the purchaser." This decision is again based on the practice that obtains in Central Provinces. Consequently this view which is based on the local practice is not relevant to the present case. In these circumstances the view taken in : AIR 1923 Pat 525(A), appears to be, if I may say so with respect, the correct view. The sale is held by the Court and the officer conducting the sale does so, under die instructions of the Presiding Officer.

Besides as pointed out by their Lordships of the Madras High Court in : AIR 1951 Mad 986 (E), it is not only proper but necessary that the Court in exercising the discretion should see that the price fetched at the auction is an adequate price. It is, therefore, necessary for the Court to pass the order of acceptance. This practice is also very salutary in so far as it eliminates the possibility of any collusive action by the officer conducting the sale. I am, therefore, of the opinion that the sale is not complete unless it is accepted by the Pre -siding Officer.

In the present case no order, of the acceptance has been passed by the Presiding Officer. When the Nazir submitted his report and also 25 per cent, of the sale price deposited by the auction -purchaser, the Court ordered the amount to be credited. But die Presiding Officer did not say whether he accepted the bid or not. In these Circumstances the sale was not complete on 9 -4 -1954, It does not appear from the record that the Court passed any order accepting the bid of the auction purchaser. Even when the rest of the purchase money was deposited by the auction purchaser the Court gave the following order:

7147 # - tek gks

This clearly indicates that the order of acceptance was, not passed even when the rest of the purchase money was deposited by the auction purchaser. Merely crediting the money deposited by the auction purchaser does not necessarily lead to the conclusion that the bid has been accepted by the Court.

In, AIR 1923 Tat 525 (A), referred to above 25 percent, of the purchase money was actually deposited by the auction purchaser and the Munsiff had written on the bid sheet the word "close". Even then their' Lordships of the Patna High Court held that that was no acceptance. It is only an offer, by the auction purchaser.

Then again in : AIR 1935 All 204 (C), the auction purchaser actually bad deposited 25 per cent, of the price. Before the sale was sanctioned she put in an application stating that she had bid for the building in a misapprehension and so she should be allowed to withdraw her bid. The Court accepted the application and ordered repayment of the deposit as the sale had not been sanctioned.

It is clear from those decisions that mere deposit of money does not complete the sale. The Presiding Officer must formally accept the bid under. Order 21, Rule 84. In this case, therefore, as there has been no formal acceptance under Order 21, Rule 84, the sale was not complete and consequently the period or 30 days does not start from 9 -4 -1954.

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