The question involved in this appeal is whether the order of the District Munsif of Tinnevelly directing a resale of the property under O. 21, R. 86, Civil Procedure Code, in execution of a decree obtained by the appellant against the first defendant is valid. The relevant facts are not in dispute. In execution of the said decree the property was sold on the 15th of September 1933 and purchased by the 3rd respondent in this case. He deposited 25 per cent of the purchase money on the same date but committed default in payment of the balance of the purchase money within 15 days as required by O. 21, R. 85, Civil Procedure Code. He deposited the amount one day later. After the amount was so deposited the decree-holder applied for confirmation of the sale and for payment to him of the amount deposited in satisfaction of his decree. Notices were issued to the judgment-debtor and also to the Official Receiver who was appointed receiver of the property of the judgment-debtor because of his having been adjudicated insolvent on the 6th of October 1933. Both the judgment-debtor and the Official Receiver objected to the confirmation and the learned Judge thereupon directed re-sale under O. 21, R. 86. It is contended that it is open to the Court to confirm the sale even though the deposit has not been made within 15 days as required by the section and therefore re-sale should not have been directed. It seems to me that under O. 21, R. 86 if there is default in payment of the balance of the purchase money as required by O. 21, R. 85, it is obligatory on the Court to re-sell the property. The language of the section is “the property shall be sold.” The discretion vested in the Court is only as regards the forfeiture of deposit. The language used in connection therewith is “the deposit may, if the Court thinks fit, be forfeited.” This is the view taken by a Bench of the Allahabad High Court in Nawal Kishore v. Buttu Mal(1) with which I agree. The order directing re-sale is therefore perfectly valid and in accordance with the plain language of O. 21, R. 86, Civil Procedure Code Mr. Thiagaraja Ayyar relied upon decisions of this Court and of other High Courts, where it was held that even though the deposit as required by O. 21, R. 85 was not made within the time limited, with the consent of all parties the Court might confirm the sale and if the Court confirmed the sale it was only an irregularity. But those decisions do not throw light on the question in dispute, namely if the Court declines to confirm the sale but passes an order directing a re-sale, whether the Court was not justified in doing so.
In the result this appeal is dismissed with costs.
Leave refused.
Appeal dismissed.
N.R.R