- (1.) THIS is an appeal by Kanhaiyalal decree-holder against the order of the Civil Judge, Sojat, setting aside a sale under OXXI, r. 84 on the ground that the decree-holder auction purchaser had not deposited 25% of the purchase money as required by O. XXI,r. 84 (1) C. P. C.
(2.) THE fact are that certain property was ordered to be sold and 25th of May, 1953, was fixed for the sale. On that day, the decree-holder applied to the executing court for permission to bid at the auction and also prayed that the amount realized by sale be set-off towards his decree. THE court passed an order this application in the following terms - "the decree-holder is permitted to bid at the sale. " Nothing was said about the other prayer made by the decree-holder, namely that the purchase money be set-off towards his decree. The sale took place on the 25th of May and the decree-holder's bid was the highest. The sale was apparently knocked down in his favour, but he did not deposit 25% of the purchase-money as required by r 84 (1) of O. XXI C P. C. Thereafter, certain objections were made by the judgment-debtor on the 29th of May, 1953 it is not necessary to refer in detail to those objections. It is enough to say that when the matter came before the court on the 17th of November, 1955, it set aside the sale on the ground that the decree-holder auction-purchaser had not deposited 25% of she purchase-money within time. It did not decide any of the objections raised in the application of the 29th of May, 1953, but fixed 25th January, 1954, for hearing those objections Thereafter, there was an appeal to this Court, and the objections of the 29th of May,1953, are, we understand, still undisposed of. The point raised by the present appeal is whether in view of the provisions of O. XXI, Rr. 72and 84 a decree-holder, who has been permitted to bid, must deposit 25% of the purchase-money at once, and if he fails to do so, the sale can be set aside. The relevant portion of O. XXI,r. 72 is as follows - " (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 of the property, (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 up satisfaction of the decree in whole or in part accordingly. " O. XXI, r. 84 (1) provides that the auction-purchaser shall forthwith deposit 25% on the amount of his purchase-money with the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be resold. Then comes r. 84 (2) which is as follows - "where the decree-holder is the purchaser and is entitled to set-off the purchase-money under r. 72, the Court may dispense with the requirements of this rule. " It is clear therefore that under r. 72, a decree-holder is entitled to set-off the purchase money against the amount of his decree. The order for set off has naturally to be made by the court after it is reported to the court that the decree-holder has purchased the property in pursuance of the permission granted under sub-rule (2) of rule 72. Similarly sub-rule (2) of rule 84provides that the court may dispense with the requirements of sub-rule (1) where the decree-holder is the purchaser, and is entitled to set-off. Reading these two rules together, it seems to us plain common sense that where a decree-holder is permitted to bid at an auction, there is an implied dispensation also that the need not deposit 95% 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 25% of the purchase money depending upon the excess of the sale price over the decretal amount. There is, in our opinion, no sense in insisting upon the decree-holder to depositing 25% of the purchase money, when the purchase money is less than or only equal to the decretal amount. We are, of course, not considering a case where there is going to be rateable 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. But where considerations of sec. 73 do not apply, the decree-holder is bound to be allowed a set-off by the court to the extent of his decree and in such a case when the court permits him to bid there must,in our opinion,be an implied permission to dispense with the requirement of deposit of 25%of the purchase-money under r. 84 (1), subject, of course, to the deposit being necessary as already explained above in case the purchase money is greater than the decretal amount. In this case, the purchase-money was less than the decretal amount, and there was no question of rateable distribution. Therefore, the decree-holder would be entitled to set-off under r. 72 (2) immediately he makes an application to this effect to the court. In these circumstances, we are of opinion that it was not necessary for the decree-holder to deposit 25% of the purchase money under r. 84 (1) for the permission granted to him to bid must also be impliedly taken to dispense with the necessity of the deposit of 25% of the purchase money, Our attention has been drawn to the tact that the decree-holder had made two prayers in his application of the 25th of May, 1953, namely (1) that he may be permitted to bid, & (2) that he may be allowed a set-off, out that the court only allowed the first prayer and did not say anything on the question of set-off, It is submitted that because the court did not say anything on the second prayer it must be presumed that the court was refusing the set off. We are of opinion that this is not the right inference. The court would be in a proper position to pass a proper order regarding the set-off when it knows the amount of the purchase-money; but from the very fact that it permits a decree-holder to bid, it must be presumed that it was impliedly permitting him to dispense with the deposit or 25% of the purchase money under the conditions which we have mentioned above. It may be noted that sub-rule (2) of rule 84 does not require an express order for dispensation, like sub-rule (l) of rule 72 which requires express permission to bid. Therefore, an order for dispensation under sub-rule (2) of rule 84 may be implied whenever a decree-holder is permitted to bid subject to the conditions which we have mentioned above, otherwise there is sense in asking the decree-holder to deposit 25% of the purchase money, supposing that the purchase money is not more than the decretal amount and then paying it back him under r. 72 (2 ). We may in this connection refer to Mathura Das Prabhu Dayal vs. Brij Rani 1) in support of the view that we have taken. Learned counsel for the respondent referred to two cases in support of the view taken by the court below, namely L. Bhag Chand vs. Mt. Najib Sultan (2) and Ratanlal vs. Bakhta-war Mal (3 ). It is enough to say that we accept the view taken by the Lahore High Court as that appears to us to be both correct and in accordance with common sense. The order of the lower court must therefore be set aside. Learned counsel for the judgment-debtor respondent wanted to raise certain other points before us, namely that no notice had been issued under O. XXT, r. 22, that no proceedings had been taken under O. XXI, rule 16, and that Kanhaiyalal could not be called the decree-holder. These are some of the points which have been raised in the objection application, dated the 29th of May, 1953. That application has not yet been decided, and we are not deciding any part of those objections. It will be open to the court below to decide those objections on the merits when the case goes back to it. We hope that the executing court will decide the objections ail at once, so that parties may not have to come to this Court again as each point is decided by it. We, therefore, allow the appeal, set aside the order of the court below dated the 17th of November, 1953, setting aside the sale, and direct that the objections of the judgment-debtor in his application dated the 29th of May, 1953, be now decided on the merits. Costs of this Court will abide the final result of the objections raised by the judgment-debtor. . ;