Judgment:
(Prayer: Writ Petition is filed under Art.226/227 of the Constitution praying to quash the order dated 14.9.2012 - annexure D, on IA 8 by the Civil Judge (Jr.Dvn.), Challakere in Ex.Petn. 24/2005.)
In connection with the order passed on the application filed by the judgment debtor for setting aside the auction sale, order has been passed by the Execution Court rejecting the same.
The facts are: Suit was filed by the respondent LIC for recovery of money of Rs.42,634/'- with future interest in the year 2005 which was decreed. In the Execution Petition 24/2005 filed by the decree holder, an application - IA 8 under O 21 R 89 r/w S.151, CPC came to be filed by the judgment debtor to set aside the sale in favour of the third party auction purchaser, as the judgment debtor was ready to deposit the decretal amount. The same was opposed by the respondent LIC/decree. The petitioner / judgment debtor had also deposited the amount of Rs. 1,17,603/- by way of a demand draft on 15.4.2010. However, the said application IA 8 came to be rejected by the Execution Court. Hence, this petition.
During execution, on the death of the husband of the petitioner, his property was made available by way of attachment to realize and satisfy the decree holder viz., LIC. In this regard, 2nd respondent being a third pariy auction purchaser is said to have deposited 25% of the decretal amount as was noted and the remaining balance amount he had to deposit within 15 days from the date of sale. It appears, 25% of the bid amount would be Rs.75,125/- which of course, the auction purchaser had deposited and subsequently, there is nou-compliance of the mandatory requirement as per O 21, R 84, 85, CPC. As such, petitioner who is the judgment debtor moved the application to canct1 the sale of immovable property i.e., land measuring 4.00 acres, which was the subject matter of realisation of money decree. At this juncture, petitioner's counsel submitted that under O 21, R 84 and 85, there shall be 25% deposit of the decretal amount at the time of auction and the remaining 75% amount to be made within fifteen days from the sale of the property and that the auction purchaser has not complied with the said provision.
Petitioner's counsel relying upon the judgment of this Court in the case of Rosali V Vs M/s Nellai Small Match Producers Service Industrial Co-op. Society Ltd and Ors -AIR 1999 KAR 167 which in tunl was disposed of referring to the decision reported in the case of Manilal Mohanlal Shah Vs Sardar Sayed Ahmed Sayed Mahmad - AIR 1954 SC 349 and Baradakanta Mishra Vs High Court of Orissa - AIR 1976 SC 1899, held that non-compliance of payment of the remaining bid amount within fifteen days after the bid amounts to cancel] ation and the sale has to be declared as null and void and the Execution Court could not make the auction valid.
As per the submission of the petitioner's counsel, though petitioner was unable to comply with the depositing of the amount as she had some difficulty, the same cannot be made a ground to reject the application for extension of time. Bui that is in the context of the third party purchaser not depositing the bid amount of remaining 75% within fifteen days from the date of bid. Here is a case where 25% amount is deposited by the auction purchaser it is also seen that the third party purchaser deposited the remaining amount nearly after one year. The stand taken by the respondent purchaser is that there is a stay in between as such, after vacating the stay, he deposited the amount.
On the other hand, petitioner's counsel submitted, there was no stay as such, rather no application was filed by the petitioner, there was no stay and there was no impediment for trie respondent third party purchaser/intended purchaser under the bid to deposit the amount.
There is non-compliance of O 21 R 84 and 85, CPC in depositing the balance of 75% of the bid amount by the auction purchaser and it was for the Court to cancel, the auction sale. In view of the ratio laid down by this Court referring to the decision of the Apex Court, the Execution Court ought to have cancelled the sale. However, it appears the judgment debtor also has deposited an amount of Rs. 1,17,603/-. The decretal amount is about Rs. 80,000/- and that was already deposited by the judgment debtor and as per requirement of depositing 25% of the auction bid amount or the decree amount, excess amount was lying with the court as on the date of filing the application. In that view of the matter, there cannot be any non¬compliance by the judgment debtor.
The judgment debtor, it appears, offers another Rs.40,000/'-. Ultimately, on persuasion, she agrees to pay Rs.50,000/-. The contention of the third party purchaser also is there was an offer for Rs.70,000/-. However, to overcome the situation, while setting aside the auction sale, amount of Rs.60,000/- shall be made by the judgment debtor to the auction purchaser and the auction purchaser is permitted to withdraw the amount which is in deposit before the Execution Court. The judgment debtor to deposit the amount in three months. Further, the remaining amount due to the Insurance Company / decree holder be made available by the judgment debtor on such submission of calculation before the Execution Court.
Petition is disposed of.