Code of Civil Procedure, 1908 – Order XXI, rules 64, 84, 85 and 86 – Execution proceedings – Decree passed in civil suit – Property of judgment debtor auctioned and sold on 03.11.2011 in favour of respondent No.1 for recovery of amount – Appellant filed objection before the Executing Court, contending, inter-alia, that the property was purchased by him from judgment debtor on 31.08.1999 and they were in possession of the same – Executing Court overruled the objections – Lower Appellate Court allowed appeal and remitted the matter back to the Executing Court – Writ petition – High Court set aside the order of lower Appellate Court observing that appellant failed to plead and establish the nature of irregularity or fraud committed in sale and therefore, no fault could be found in the order of the Executing Court – On appeal, held: As per Order XXI, rules 84 and 85, the auction purchaser has to deposit 25% of the sale amount immediately on being declared to be the purchaser and full amount of purchase-money is to be paid by the purchaser into the Court before the Court closes on fifteenth day from the sale of the property – In the present case, the purchaserrespondent No.1 did not deposit 25% of the amount as required under Order XXI, rule 84 immediately – Even the balance 75% of the amount was not deposited as required under Order XXI, rule 85 – Full amount of purchase-money in the present case was deposited on 04.11.2011 i.e., after the period prescribed /provided under Order XXI, rule 85 – Evidently, there was non-compliance of mandatory provisions of Order XXI, rules 84 and 85 and therefore, the sale was vitiated – Even otherwise, when the property in question was put to auction on 18.10.2011 the appellant had already purchased the said property as far as back on 31.08.1999 as there was no injunction with respect to the said property – When the property was put to auction, the judgment debtor was not the owner and therefore, the same could not have been put to auction – Under the circumstances, the Executing Court erred in overruling the objections raised by the appellant – Order of the High Court, quashed – Order passed by lower Appellate Court, restored.
Manilal Mohanlal Shah and Ors. v. Sardar Sayed
Ahmed Sayed Mahmad and Anr, (1955) 1 SCR 108 and Rosali V. v. Taico Bank and Ors. (2009) 17 SCC 690 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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