TMI Blog1954 (4) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... t’ to benefit by the mistake to which they themselves contributed. They cannot be allowed to take advantage of their own wrong. Appeal dismissed. - Civil Appeal No. 93 of 1953 - - - Dated:- 14-4-1954 - HASAN, GHULAM, MAHAJAN, MEHAR CHAND AND BOSE, VIVIAN, JJ. For the Respondent ; C. K. Daphtary, Solicitor-General for India with J. B. Dadachanji and A. C. Dave JUDGMENT GHULAM HASAN J.- This appeal brought by the auction purchasers by special leave raises the question of the validity of a sale of certain properties which took place on August 13, 1942. The respondents are the judgment-debtor and the legal representative of the deceased decree-holder. The decree-holder applied on March 30, 1940, for execution of his decree by sale of 4 lots of property belonging to the judgment-debtor. The properties were valued it Rs. 1,50,000 and were subject to a previous mortgage of Rs. 60,000 existing in favour of the auction--purchasers. It appears that under the terms of the mortgage-deed the mortgagees were entitled to proceed in the first instance against -the first 3 lots and against the fourth lot only in the event of a deficiency in sale price to cover the deceretal amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45,000 and the third at Rs. 8,000 only. The property did not consist of mere survey numbers but admittedly had bungalows, and superstructures and in the opinion of the Court the subsequent valuation was bound to mislead bidders. The. Court, however, set aside the sale on the ground that the provisions of Order XXI, rules 84 and 85, had not been complied with in that the price was not deposited but a set-off was wrongly claimed and allowed in the absence of the judgment-debtor by the Court which had no authority or jurisdiction. The Court observed. "There is nothing to show that these opponents took any permission from the Court to bid at the auction and in fact they could hardly have obtained any such permission, they being mortgagees whose dues had yet to be proved and determined. If they could ask for set-off, there is no reason why they should not be required also to seek previous permission from the Court to bid under Order XXI, rule 72, of the Civil Procedure Code. It may be noted that one of these opponents is himself a pleader and he was not justified in taking such an unauthorised order from the Court without fully acquainting with all the facts. Under all these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase 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 section 73, be set off against one another....................... (3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale ............................................. "84. (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent. on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be resold. (2) Where the decree-holder is the purchaser and is entitled to set off the purchase-money under rule 72, the Court may dispense with the requirement of this rule. " 85. The full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20,000 which they put forward before the execution Court had not been adjudicated upon or determined. The mortgagees, one of whom is a pleader, applied on the day of the sale claiming a set-off on foot of the mortgage. The Court without applying its mind to the quest-ion immediately passed the order allowing the set-off. This claim was obviously not admissible under the provisions of rule 84 which applies only to the decree-holder. The Court had clearly no jurisdiction to allow a set-off. The appellants misled the Court into passing a wrong order and obtaining the advantage of a set-off while they knew perfectly well that they had got no decree on foot of the mortgage and their claim was undetermined. There was default in depositing 25 percent of the purchase-money and further there was no payment of the full amount of the purchase money within fifteen days from the date of the sale. Both the deposit and the payment of the purchase-money being mandatory under the combined effect of rules 84 and 85, the Court has the discretion to forfeit the deposit but it was bound to re-sell the property with the result that on default the purchaser forfeited all claim to the property. These pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86. Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of opinion that the provisions of the rules requiring the deposit of 25 per cent. of the purchase-money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 percent of the purchase-money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Nonpayment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the Court is bound to resell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired. no rights at all. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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