Prashant Kumar Agarwal, J. - (1.) The petitioners have preferred these two separate revision petitions under Section 115 of the Code of Civil Procedure against the same impugned order dated 3.8.2006 passed by the Additional District Judge No.4, Kota in Execution Case No.10/2003 whereby the learned Court below confirmed the auction sale dated 20.2.2006 and also ordered that sale-certificate under Order 21 Rule 94 Civil Procedure Code may be issued. As both the revision petitions have been preferred against the same impugned order with the consent of learned counsel for the parties the same were heard together and are being decided by this common order. It is pertinent to note that the petitioner-Rajasthan Financial Corporation initially filed writ petition against the impugned order but vide order dated 6.7.2012 with the consent of learned counsel for the parties the same was converted into and treated as civil revision petition.
(2.) Brief relevant facts for the disposal of these petitions may be stated as below:- (i) The petitioner-Rajasthan Financial Corporation (hereinafter to be referred as decree-holder) filed a civil misc. case No.19/96 under Section 31 of the State Financial Corporation Act against the petitioner-Shri Narendra Kumar Goswami (hereinafter to be referred as judgment-debtor) and an exparte judgment and decree was passed on 18.12.1996 against him for Rs.9,53,079/- with interest @ 16% per annum with effect from 16.3.1989. It was also ordered that the decree-holder is entitled to recover the said amount by attachment and sale of mortgaged property. (ii) The decree-holder filed Execution Application No.10/2003 in the Court below on 8.1.2003 for the recovery of decreetal amount against the judgment-debtor. (iii) The landed property mortgaged by the judgment-debtor with the decree-holder was attached by the Executing Court and a warrant of proclamation under Order 21 Rule 66 Civil Procedure Code was issued on 7.2.2006 and one Shri Brij Gopal Sharma was appointed as Special Sale Ameen to conduct the sale on 20.2.2006. Before that on 2.2.2006 "Ishtehar Neelam" in accordance with the provisions of Order 21 Rule 66 Civil Procedure Code was also issued by the Court below and in it terms and conditions of the sale were also incorporated. (iv) In compliance of the direction and order made by the Court below auction sale was conducted on 20.2.2006 and non-petitioner Surendra Sahni (hereinafter to be referred to as "auction purchaser") was declared to be the highest bidder as he gave bid for Rs.17,86,000/- and in accordance with the terms and conditions of the sale he was directed to deposit 25% of the bid amount on the same day and remaining 75% of the amount within fifteen days. (v) The auction-purchaser did not deposit the required 25% amount on the same day but the amount was deposited on the next day i.e. 21.2.2006. (vi) On 22.2.2006 in the presence of the counsel for the decree-holder it was ordered by the Court below that fresh warrant of sale may be issued for 7.3.2006. (vii) On 2.3.2006 the auction-purchaser filed three different applications before the Court below and the decree-holder filed replies to the applications on 4.3.2006. (viii) Vide order dated 6.3.2006 the Court below allowed the auction-purchaser to deposit the remaining 75% of the bid amount and in compliance of that the remaining amount was deposited. It was also ordered that the auction-sale may not be held in compliance of order dated 22.2.2006. (ix) On 7.3.2006 the judgment-debtor filed an application before the Court below for stay of execution proceedings on the ground that the auction proceedings have not been properly conducted and the property can fetch much more value than the highest bid made by the auction-purchaser. It was also stated in the application that he has submitted an application for one time settlement before the decree-holder and the same is under consideration. It was prayed that auction-sale held on 20.2.2006 may be set aside. (x) The decree-holder also submitted an application on 8.3.2006 before the Court below with the averment that proposal of judgment-debtor regarding one time settlement of loan is under consideration and it was prayed that the execution proceedings may be stayed. (xi) On 24.7.2006 the decree-holder further submitted an application before the Court below for withdrawing the execution petition on the ground that proposal for one time settlement has been accepted and an amount of Rs.5 lacs has already been paid by the judgment-debtor to the decree-holder. On 1.8.2006 the decree-holder further filed an application stating therein that the judgment-debtor has submitted an application in the Head Office of the decree-holder for extension of time to deposit the balance amount and prayer was made to the Court below for staying the execution proceedings. (xii) Learned Court below considered the applications filed by the respective parties and vide impugned order dated 3.8.2006 auction sale dated 20.2.2006 was confirmed and it was also ordered that sale certificate may be issued in favour of the auction-purchaser. Feeling aggrieved, both decree-holder as well as judgment-debtor-Shri Narendra Kumar Goswami are before this Court by way of these civil revision petitions.
(3.) Assailing the impugned order learned counsel for the petitioners first of all submitted that it is an admitted fact that 25% of the bid amount was not deposited/paid to the sale-ameen on the same day immediately after the highest bid was accepted and according to auction-purchaser himself it was deposited on the next day i.e.21.2.2006 and, therefore, there was total non compliance of Rule 84ORDER21 Civil Procedure Code which requires that 25% of the amount shall be deposited immediately to the officer conducting the sale. It was further submitted that it is well settled that if in accordance with Rule 84 the required amount is not paid immediately the property in question becomes liable to be re-auctioned and no right is created in favour of the highest bidder and such sale cannot be confirmed. It was submitted that in the present case as the auction-purchaser failed to deposit 25% of the bid amount within the prescribed period, the Court below on 22.2.2006 rightly ordered for re-sale of the attached property and fixed 7.3.2006 as a date on which the auction was to be re-held. It was also submitted that it was never the case of the auction-purchaser before the Court below that he could not deposit the required amount immediately to the Sale Ameen for some reason and in absence of the same he cannot be allowed to say for the first time before this Court that for one or more reason he could not deposit the required amount to the Sale-Ameen or in the Court below. In support of their submissions learned counsel for the petitioners relied upon the case of Rao Mahmood Ahmad Khan v. Ranbir Singh & ors. Reported in 1995 Supp (4) SCC, 275.;