DAVE, J. - (1.) THIS is a second appeal by the judgment-debtor against the order of the District Judge, Balotra, dated 9th November 1955, upholding the decision of the Civil Judge, Balotra, dated the 19th February, 1955.
(2.) THE facts giving rise to it are, that Hastimal and his sons Sumer Mal and Pukhraj (respondents) obtained a money decree against appellant Poonam Chand from the court of the Civil Judge, Balotra, on 29th May, 1953. On 18th January, 1954, the decree-holders presented an application for execution and requested for recovery of Rs. 5610/10/- after adding costs and interest accruing upto that date. In execution of the said decree, one house belonging to the judgment-debtor was put to sale. On 20th November, 1954, the decree-holder Hastimal was permitted by the executing court to bid at the auction. THE auction took place on 14th January, 1955. THE highest bid was that of the said decree-holder and so he was declared to be the purchaser of the property. On the 3rd of February, 1955, the validity or the sale wis challenged by the judgment-debtor on several grounds. That application was however,! dismissed by the court on 19th February, 1955. THE judgment-debtor then went in appeal but he was unsuccessful and therefore he has approached this Court. The main ground which has been urged in this Court by the appellant's learned counsel is, that the purchaser neither paid 25 percent of the purchase money on 14th January, 1955 as required by Or. 21, R. 84 of the Code of Civil Procedure, even though the court had not dispensed with the requirements of that rule, nor he did deposit within 15 days the amount which was payable to other decree-holders according to sec. 73 of the Code of Civil Procedure and thus he violated the provisions of Or. 21 Ru. 84 and 85. It was contended by learned counsel that out of Rs 1931/- for which the property was sold, the decree-holder was entitled to set off the amount of Rs. 793/13/-only, that Rs. 979/13/-were payable to other decree-holders by way of ratable distribution under sec. 73 of the Code of Civil Procedure and that the latter amount not having been deposited within 15 days, the courts below ought to have set aside the sale. It is pointed out that the respondents deposited the amount of Rs. 976/18/- payable to the other decree-holders on 19th February, 1955, i. e. , long after the expiration of the period of 15 days. He has proceeded to urge that the provisions of Or. 21, RR. 84 and 85 are mandatory as held by their Lordships of the Supreme Court in Manilal Mohanlal Shah Vs. Sardar Sayed Ahmed Sayed Mahmed (1) and therefore the sale should be set aside. It is not disputed by the learned counsel for the respondents that the sale took place on 14th January, 1955, that the amount of Rs. 976/13/- was payable to other decree-holders under sec. 73 of the Code of Civil Procedure, that the said amount was deposited on 19th February, 1955 and that no amount was deposited before that date. But, it is contended, that the amount of the purchase-money being much less than the decretal amount, the decree-holder purchaser was entitled to set off the purchase-money against the amount due on the decree and that he was not bound to deposit the money payable to rival decree-holders within 15 days from the date of sale. According to the learned counsel, Or. 21, Rr. 84 and 85 came into play only if the amount of the purchase-money exceeds the amount due on the decree and that the said Rules do not contemplate that the money payable to rival decree-holders under sec. 73 should also be deposited within the period prescribed therein, even though the sale-price does not exceed the amount due under the decree held by the purchaser. The question which thus arises for determination is, whether the provisions of O. 21, Rr. 84 and 85 have been infringed by the decree-holder Hastimal and whether the sale of the property in his favour is therefore liable to be set aside. Before proceeding to discuss the position of law, it would be proper to reproduce here Rr. 72, 84 and 85 of O. 21, of the Civil Procedure Code: - "72 Decree holder not to bid for or buy property without permission. (1) No. holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property. Where decree-holder purchases, amount of decree may be taken as payment. (2) where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of Sec. 73, be set off against one another, and the Court executing the decree shall enter satisfaction of the decree in whole or in part accordingly. 84. Deposit by purchaser and re-sale on default (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 conducting the sale, and in default of such deposit, the property shall forthwith be resold. (2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72 the Court may dispense with the requirements of this rule. 85. Time for payment in full of purchase-money : The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property. Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72. Before the decision of their Lordships of the Supreme Court in Manilal Mohanlal Shah's case (1), there was a divergence of views whether the provisions of O. 21, Rs. 84 & 85 were directory or mandatory. But in the said case (1) it has been held authoritatively that the provisions of these rules are mandatory. Their Lordships observed that "the provision regarding the deposit of 25 per cent by the purchaser other than the decree-holder is mandatory as the language of the rule suggests. The full amount of the purchase money must be paid within fifteen days from the date of the sale but the decree-holder is entitled to the advantage of a set-off. The provision for payment is, however, mandatory. If the payment is not made within the period of fifteen days, the court has the discretion to forfeit the deposit and there the discretion ends but the obligation of the court to re-sell the property is imperative. A further consequence of non-payment is that the defaulting purchasers forfeits all claim to the property". Their Lordships further observed that "having examined the language of the relevant rules and judical decisions bearing upon the subject, we are of opinion that the provisions of the rules requiring the deposit of 25 percent of the purchase money immediately, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 percent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceeding as a complete nullity. " Learned counsel for the respondents has urged that if the purchaser of the property is a person other than the decree-holder and if he fails to deposit 25 per cent of the purchase money immediately on his being declared as a purchaser and the balance within 15 days of the sale, then the sale would be void. But in a case where the purchaser is the decree-holder himself, he need not pay any amount, unless the purchase-money exceeds the amount due on the decree, because he is entitled to a set-off. According to him, the decree-holder need not deposit any amount which is payable to other decree-holders under sec. 73 of the Code of Civil Procedure, if the purchase-money does not exceed the amount which is payable to him under the decree. I have given due consideration to the arguments of the learned counsel for the respondents and, id my opinion, the stand taken by him is not tenable. Rule 84, sub-rule (2) provides that if the purchaser is the decree-holder himself and if he is entitled to set-off the purchase-money under rule 72, the court may dispense with the requirements of this rule. A perusal of R. 72, referred above, would show that if the decree-holder purchases the judgement-debtor's property with the express permission of the court, then he is entitled to set-off the amount due on the decree against the purchase-money, but this right is subject to the provisions; of sec. 73 of the Code of Civil Procedure. The use of the words "subject to the provisions of sec. 73" clearly shows that he is not entitled to set-off of the money which is payable to other decree-holders ratably under sec. 73 and thus the amount which is payable to the rival decree-holders must be deposited in the court. It is not disputed even by learned counsel for the respondents that a decree-holder purchaser is bound to deposit in court the money which is payable to rival decree-holders under sec. 73, but what he means to contend is that this deposit need not be made at the times prescribed by Rr. 84 and 85 of O. 21, of the Code of Civil Procedure. On a careful consideration, 1 think that this argument is not correct, because Rule 84 (2) lays down that even though the decree-holder may be entitled to set-off the purchase-money under R. 72, it is for the court to dispense with requirements of sub-rule (1 ). In other words, the decree-holder purchaser cannot claim as of right that since he is entitled to set-off certain amount, he is not bound by the Rule of depositing 25 percent of the purchase-money. The Rule, as framed, clearly indicates that the power is given to the court to exempt the decree-holder from making the deposit of 25 per cent in a suitable case and if for any reason the court requires the decree-holder to deposit the amount of 25 per cent of the purchase-money, he is bound to obey its order. The dispensation with the requirements of sub-Rule (1) by the court may be express or implied, but the power is given only to the court and not to the decree-holder purchaser. If he fails to abide by the order of the court, the mandatory provision of sub-rule (1) would apply to him as much as to any other purchaser and there would be no valid sale in his favour.
(3.) SIMILARLY, the perusal of the provision to Rule 85 lays down that if the purchaser is a decree-holder, then in calculating the amount to be paid into the court, he shall have the advantage of any set-off to which he may be entitled under R. 72, but, as pointed out above, the right given to the decree-holder by Rule 72 is subject to the provisions of sec. 73 and, therefore, he must deposit the balance payable to the rival decree-holders under sec. 73 on of before the close of the fifteenth day from the sale of the property and thus he cannot claim the advantage of set-off to the extent of the amount payable to other decree-holders. It is contended by respondents' learned counsel that the decree-holder purchaser cannot know at the time of sale or within 15 days as to how much amount is payable to the rival decree-holders and if the said view is upheld, it would create hardship for him. This argument also does not carry much weight. The decree-holder who seeks express permission of the court to bid at the auction-sale may also request the same court to let him know how much money he would be liable to pay under R. 84 (2) or he may request the court to dispense with the requirements of that Rule altogether. Then, after he is declared purchaser he knows the amount of the purchase-money and he can easily calculate how much money would be payable to the rival decree-holders. If he cannot do it himself, he may request the court and it would not at all be difficult for the court to let him know how much amount is payable to other decree-holders, because a period of 15 days intervenes before Rule 85 is applied. To my mind, the decree-holder is bound to deposit in court on or before the close of the 15th day from the sale of the property the amount which is payable to the rival decree-holders, because he cannot have the advantage of set-off to that extent. In Kanhaiya Lal Vs. Sens Mal (2) it was held by this Court that "where a decree-holder is permitted to bid at an auction, there is an implied dispensation also that he need not deposit 25% of the purchase money unless the sale price is more than the decretal amount. Where the sale price is more than the decretal amount, the decree-holder must deposit the excess up to 25% of the purchase money, depending upon the excess of the sale price over the decretal amount". At the same time, it was observed that "we are, of course, not considering a case where there is going to be ratable distribution under the provisions of sec. 73, for in such a case different considerations apply, and even if the decree holder is the auction purchaser, he must deposit 25 % of the purchase money". Learned counsel for the respondents relies on Bobba Varalakshmamma Vs. Kosaraju Jannayya (3) in which it was held by a learned Single Judge that "where the decree-holder auction purchaser who has obtained permission to set off deposits the difference between the amount for which he purchased the property and the amount due to him under the decree, within 15 days from the date of the sale the provisions of O. 21, R. 15 are complied with. It is not necessary for the decree holder auction purchaser to pay within 15 days from the date of sale that portion of the amount that may be payable ratably to the other creditors who may claim a share in the assets realised by the sale". It appears from the perusal of the judgment of the above case (3) that the learned Judge has referred to A. M. Murugappa Chettiar Vs. S. M. A. M, Ramasami Chettiar and others (4 ). In that case (4) it was held that the only amount which the decree-holder auction purchaser was bound to bring into court was the sum due to those decree-holders whose execution applications were pending on the date of the sale and that the decree-holders applying after the sale were not entitled to claim ratable distribution. In that case it was not decided at what time the purchaser was bound to deposit in the court the amount which the rival decree-holders are entitled to get by way of ratable distribution. The reason given by the learned Judge in Bobba Varalakshmamma's case (3) for the view expressed by him was that "a creditor entitled to claim ratable distribution has a summary remedy to proceed against the decree-holder auction purchaser to realise his amount. If such amounts have to be deposited within 15 days from the date of the sale, then there could be no necessity for this summary remedy". With great respect, I find myself unable to subscribe to the view expressed in the above case. Sec. 73 of the Code of Civil Procedure lays down that where assets are held by the court and more persons than one have, before the receipt of such assets, made application to the court for the execution of the decrees for the payment of money passed against the same judgment debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be ratably distributed among all such persons. It is clear that in order to enable the court to distribute the assets ratably, they must be held by the court. The decree-holder purchaser is entitled to set off under O. 21, R. 72 only that part of the purchase money which is payable to him rateably and therefore the remaining purchase money must be deposited by him in the court in the same manner as any other purchaser and unless the money is so deposited, the court would not be in a position to distribute it to other decree-holders. There is no provision in the Code of Civil Procedure to show that the decree-holder purchaser may deposit the money payable to other decree-holders at any time he likes after the sale of the property to him. If the reason advanced by learned counsel for the respondents is upheld, then the same purchaser may as well argue, after the sale, that he has been allowed to set off the entire purchase money against the decretal amount payable to him and that if the rival decree-holders think that he was not entitled to receive that amount or that he has been over-paid, they may sue him for the refund of the assess under sec. 73 (2 ). Such a view would create a great difficulty for the court in realising the amount from the purchaser and at any rate it would result in multiplicity of proceedings. So far as the present case is concerned, I find that the executing court had not even impliedly dispensed with the requirements of R. 84 in the respondents' case. This is clear from the perusal of the order-sheet dated 22. 1. 55 which shows that when the papers relating to the auction were put up before the court, it noted with concern that the decree-holder had not deposited 25 per cent of the purchase money and that he had presented an application that the purchase money should be set off against his decretal amount. The court while noting that there were applications of other decree-holders also for retable distribution of the assets, dismissed the decree-holder's application and directed him to deposit the purchase money. The case was then adjourned to 5. 2. 55. Before this date the decree-holder presented another application on 29. 1. 55 that he will be put to great hardship in depositing the money payable to the other decree-holders and that he was prepared to furnish security for the amount payable to them. On this application the court ordered that time be extended for depositing the amount till the next date of hearing. On the basis of this order, it is contented 'by respondents' learned counsel that the Court having extended the time, there was no default on the part of his client. But, it may be observed that once the court had dismissed the decree holder's earlier application on 22. 1. 55, it had no jurisdiction left to allow his second application dated 29. 1. 55 in the absence of the other party and extend the period beyond that permissible by law. The decree-holder purchaser having failed to comply with the provisions of Rules 84 & 85 of Order 21 of the Code of Civil Procedure, there was no valid sale in his favour. ;