Panna Lal (Judgment-Debtor) v. Bhola Nath And Others (Auction Purchaser).

Niamat-Ullah and Bennet, JJ.:— This is a revision from an order passed by the learned District Judge, Meerut, reversing an order of the learned Subordinate Judge of that district who set aside the sale of a house held in execution of a decree, under order XXI, rule 89, of the Code of Civil Procedure.

Har Sahai obtained a decree for sale on foot of a mortgage in respect of several houses and a shop, including house No. 559, against the applicant Panna Lal and three others. Two of the houses, including No. 559, and the shop were sold by auction and fetched sufficient price to satisfy the decree. House No. 559 was sold by a separate lot for Rs. 1,000 to Bhola Nath, the opposite party. The remaining house and the shop, sold by separate lots, fetched prices which together with Rs. 1,000, the price of house No. 559, fully satisfied the decree as we have already stated. Within thirty days of the sale of house No. 559, Panna Lal, who is probably solely interested in that house, deposited, under order XXI, rule 89, Rs. 1,000 plus Rs. 50 and applied for an order setting aside the sale of house No. 559. The application was contested by the auction purchaser, but the court of first instance refused to confirm the sale and set it aside. On appeal by the auction purchaser, the learned District Judge reversed the order of the court of first instance and dismissed the application under order XXI, rule 89, of the Code of Civil Procedure. Panna Lal has applied to this Court in revision.

The deposit and the application made by Parma Lal, under order XXI, rule 89, were objected to by the opposite party on two grounds, viz. (1) that no sale can be set aside under order XXI, rule 89, until the entire decretal amount together with five per cent, of the purchase money is deposited, and that the applicant having deposited only Rs. 1,000, for which the house in question has been sold, the provisions of order XXI, rule 89, of the Code of Civil Procedure were not complied with; and (2) that the auction purchaser was not made a party to the application purporting to be one under order XXI, rule 89, of the Code of Civil Procedure. Both the courts below overruled the second ground, which has not been pressed in this Court. As regards the first ground, which found favour with the lower appellate court, though not with the court of first instance, reliance is placed upon the wording of rule 89 of order XXI, which directs payment, to the purchaser, of the sum equal to five per cent, of the purchase money, and to the decree-holder of the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. The argument ignores the latter half of rule 89(b) which materially qualifies the provision for payment to the decree-holder. The judgment-debtor is entitled to deduct from “the amount specified in the proclamation of sale … any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.” This part of the rule was apparently overlooked by the learned District Judge, who appears to have been of opinion that, though Rs. 50 deposited for the auction purchaser was adequate, yet the sum of Rs. 1,000 being part only of the decretal amount was insufficient, and that though “the decree-holder … had stated in express terms that he did not object to the setting aside of the sale”, the auction purchaser could successfully contest the application on that ground. It was stated before us on behalf of the applicant that the decree-holder had withdrawn the money fetched at the auction sale in Page: 155full satisfaction of his decree. The learned advocate for the opposite party frankly stated that he was not in a position to controvert the applicant's, assertion, though the would not expressly admit its correctness. We think that the court of first instance was justified in the view it took. The decree-holder having had his decree fully satisfied by the amount fetched at the auction sales, except to the extent of Rs. 1,000 for which the opposite party purchased the house now in question, the only part of the decretal amount which need have been deposited by the applicant under order XXI, rule 89(b), is Rs. 1,000, plus Rs. 50 for payment to the auction purchaser. It is not disputed that he deposited these amounts, besides the sum of Rs. 62 payable for charges incidental to the auction sale. On the merits, therefore, the order of the learned District Judge cannot be sustained.

The learned advocate for the opposite party strenuously contended that this Court cannot interfere in revision with the order of the learned District Judge which, assuming it to be based on an erroneous view of Taw, cannot be said to be without jurisdiction. Nor can the learned District Judge be said to have failed to exercise a jurisdiction vested in him by law or to have exercised it illegally or with material irregularity. It was also urged that if the court of first instance had refused to set aside the sale, this Court could possibly have interfered with it in the exercise of its revisional jurisdiction, but in so far as the learned District Judge had jurisdiction to hear the appeal before him and to decide it, his order whether right or wrong in law cannot be considered to affect the exercise or the refusal to exercise his jurisdiction. We are unable to accept these contentions. Order XXI, rule 92, is mandatory, in its provisions and lays down that “where in the case of an application under rule 89 the deposit required by that rule is made within thirty days from the date of sale, the court shall make an order setting aside the sale.” The applicant having made the deposit required by rule 89, the court executing the Page: 156decree or the lower appellate court had no discretion in the matter and no power to refuse to set aside the sale Any order passed in contravention of an imperative rule of law is not a legal, order. While therefore it may be conceded that the learned District Judge had jurisdiction to hear and decide the appeal before him, he exercised that jurisdiction illegally by acting in the teeth of the provisions of order XXI, rules 89 and 92, of the Code of Civil Procedure. This being so, we are clearly of opinion that section 115(c) of the Code of Civil Procedure applies to this case and that this Court can set-aside the aforesaid illegal order in the exercise of its revisional jurisdiction.

As to whether there is any difference in the extent of this Court's power to interfere with the order of the appellate court, assuming it has a power to interfere with a similar order passed by the court of first instance, we think that there is none, for the reason already stated, viz., that the District Judge exercised his jurisdiction as a court of appeal in an illegal manner.

In the view of the case we have taken, this revision must succeed. The application is accordingly allowed, the order of the learned District Judge is set aside and that of the Subordinate Judge is restored the applicant will have his costs throughout.