SUPREME COURT OF INDIA

Before:- B.N. Kirpal and N. Santosh Hedge, JJ.

Civil Appeal No. 1404 of 1986. D/d. 2.11.1999.

Panna Devi - Appellant

Versus

Ram Prasad Pandey (Dead) By Lrs. and others - Respondents

Civil Procedure Code, 1908, Order 21, Rule 90(2) (as amended by Allahabad High Court) Provisions of Order 21, Rule 90(2) are mandatory - Applicant did not deposit 12½% of bid money before application for setting sale aside made - Held that, where applicant does not comply with provisions of sub- Rule (2), held, application liable to be rejected - No dispensation from deposit granted - Held, High Court erred in entertaining the application on merits and allowing respondent's writ petition.

[Para 11]

ORDER

B.N. Kirpal, J. - This appeal arises from the judgment of the Allahabad High Court who had allowed a writ petition filed by the respondent whereby the High Court had come to the conclusion that the objections filed by the said respondent to the court auction were within time and the conclusions to the contrary arrived at by the executing court were not correct.

2. Briefly stated, the facts are that on 14-4-1958 in a suit filed by PBAS Inter College Hathras, a decree for money was passed against the respondent. When the decretal amount was not paid, the Court directed sale of the property being agricultural land which is the subject-matter of this appeal, by public auction.

3. Prior to 1972 attempts were made to sell the said land by court auction but the matter never came to an end as the bid money was never deposited and the decree remained unsatisfied.

4. As far as the present proceedings are concerned, on 18-12-1971 the Court ordered a fresh sale to be made by court auction. According to the order-sheet of the Munsif it was stated that:

"Issue warrant of sale to Amin and sale proclamation to Central Nazir fixing 18-4-1972 for sale and 22-4-1972 for report."

5. Pursuant to the said order the sale proclamation was drawn up and thereafter on 18-4-1972 the auction was held. It appears that one Prabha Wati made bid of a sum of Rs. 8100, which bid was accepted, but a sum representing 25% of the auction money was not deposited. In view of this, this bid was cancelled and the property was immediately reauctioned whereupon the appellant gave a bid of Rs. 8200.

6. The case of the appellant is that this bid of Rs. 8200 was accepted by the Amin. Thereafter, the Amin made a report to the Court in which relevant facts pertaining to the auction were mentioned and in the report while stating that with the appellant's bidding Rs. 8200 the bid was closed, it was mentioned that he hoped that the sale would be confirmed. The actual words which were used in the report by the Amin were "ba ummeed manzoori".

7. In the English translation which has been filed in this Court it has been stated that the relevant part of the report of the Amin read as follows:

"Keeping in consideration the above fact I feel that bid given by Smt Panna Devi is sufficient hence I conclude the sale in favour of Smt Panna Devi with the hope that the sale will be confirmed."

8. On 16-2-1974 the respondent through his general power of attorney, filed objections under Order 21 Rule 90 before the executing court alleging irregularity and prayed that the sale in favour of the appellant should not be confirmed. The executing court vide its judgment dated 2-7-1977 came to the conclusion that the objections filed by the respondent were barred by time. He also observed that the respondent had not deposited the required sum and hence the application was bad in law. It may here be noticed that according to the Allahabad High Court amendment, sub-rule (2) of Rule 90 Order 21, inter alia, requires that in order that an application should be entertained under that rule, the applicant must deposit an amount not exceeding twelve-and-a-half per cent of the sum realised by the sale or furnish such security as the court may in its discretion fix except when the court for reasons to be recorded dispense with the requirements of this clause. It is clear from the order of the executing court that no dispensation was given. Apart from the fact that the Court came to the conclusion that the application was barred by time, the objections were also dismissed because of non-compliance with regard to the deposit of twelve-and-a-half per cent of the auction bid money. Even on merits the objections were rejected.

9. On an appeal being filed the lower appellate court came to the conclusion that the objections filed by the respondent herein were barred by time. He came to the conclusion that the bid of the appellant was accepted by the Amin on 18-4-1972 and objections were filed nearly two years thereafter and therefore they were barred by time.

10. Thereafter, the judgment-debtor filed a writ petition. The Allahabad High Court by the impugned judgment came to the conclusion that the Amin had not accepted the bid as the words "ba ummeed manzoori" indicated that the bid was subject to acceptance by the Court. Hence this appeal by special leave.

11. From the facts enumerated hereinabove, the High Court, in our opinion, erred in exercising its jurisdiction under Article 226 and in upsetting the judgment of the lower appellate court. Firstly, the High Court ignored the fact that there had been non-compliance with the provisions of Order 21 Rule 90 sub-rule (2) which required the applicant to deposit twelve-and-a-half per cent of the bid money before the application for setting aside the sale could be entertained. The executing court in its order dated 2-7-1977 has clearly stated that this amount was not deposited. Learned counsel for the respondent is unable to satisfy us from any document on record that the provisions of Order 21 Rule 90 sub-rule (2) had been complied with and the money deposited. On this ground alone the objections merited dismissal. Furthermore, when the trial court as well as the lower appellate court having come to the conclusion that the sale bid was accepted by the Amin on 18-4-1972, there was no justification for the High Court to have interfered with this concurrent finding. The report of the Amin clearly shows that the bid was closed with the appellant having given the highest offer of 8200 rupees. The use of the words "ba ummeed manzoori" in this context can mean nothing more than the fact that the sale was subject to confirmation by the Court which would be relatable to Order 21 Rule 92. The High Court in our opinion was, therefore, in error in allowing the writ petition.

12. For the aforesaid reason the appeal is allowed. The judgment of the High Court is set aside. Parties will bear their own costs.

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