- (1.) THIS second appeal has been filed by the decree-holder against an appellate decision of the Additional Commissioner Jodhpur dated 16-12-52 in a case relating to execution of a decree.
(2.) WE have heard the learned counsel appearing for the parties and have gone through the record as well. This appeal was heard originally ex parte on 29-1-54 and was allowed. Subsequently on the application of the respondents the ex parte order was set aside and the appeal has been heard again. The facts of the case are that a house belonging to the respondent Samarth Singh, Lala etc., was put to auction in execution of a decree obtained by the appellant. The last bid was knocked down on 9-11-51 for Rs. 2,221/-in favour of Virchand, who has since died and is now represented by his widow Mst. Ghisi. On that very date the Judgment-debtors applied before the executing court for stay of the execution proceedings on the ground that they were intending to his an appeal against the order rejecting their objections against the sale of the house. The S.D.O passed the following order: - "Recovery of 25%from the highest bidder be stayed till further orders as the applicants want to go in appeal. Put up on 30-11-1951." There were two further adjournments in the case and ultimately on 10-12-51 the court ordered that the auction purchaser be directed to deposit 25% of the bid money immediately and the residuary amount within a week. 25% money was deposited by the auction purchaser on 26-12-51 and the rest on 18-2-52. The judgment debtors raised an objection that as the auction purchaser had failed to comply with the mandatory provisions of Rule 153 and 154 of the rules made under sec. 8 of Rajasthan Revenue Courts, P & I Act, the sale proceeding should be set aside. The executive court held that the responsibility for this noncompliance rested upon the judgment debt or himself and the sale was valid. The judgment debtor went up in appeal before the Additional Commissioner who allowed the objection and cancelled the sale and the sale certificate and directed a fresh sale. The decree holder has come in appeal before us. The main contention put forth on behalf of the appellant before us is that as the judgment debtor had himself applied for the stay of execution proceeding, the non-compliance of Rules 153 and 154 is the result of the judgment-debtor's own request and hence can not be allowed to operate to the determent of the decree holder. Reliance has been placed in this connection upon A.I.R. 1931 Lahore 15, A.I.R. 1937 Lahore 113 and A.I.R. 1955 Hyderabad 110. It has been replied on behalf of the respondents that the provisions of Rules 153 and 154 of the rules framed under sec. 8 of the Rajasthan Revenue Courts Act corresponding to order XXI Rules 84 and 85 C.P.C. are mandatory and a non-compliance therewith vitiates the entire sale proceedings. A.I.R. 1954 Supreme Court 349 has been cited in this connection. In the Supreme Court case A.I.R. 1931 Lahore 15, was examined along with other decisions laying down a similar proposition and it was held that all those cases did not lay down the law correctly. The learned Judges of the Supreme Court were pleased to observe as follows: - "11. Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of the opinion that the provision of the rules requiring the deposit of 25 per cent 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 or all. The rules do not contemplate that there can be no 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 said 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. The very fact that the court is bound to resell the property in the event of a default shows that the previous proceeding for sale are completely wiped out as if they do not exist in the eye of law........." In view of this clear high authority on the point, it becomes perfectly clear that the decision of the learned Additional Commissioner is perfectly correct.;