P L D 1953 Lahore 83 (PLP)

M. R. KAYANI, J.‑--Chaman Lai and Roshan Lai in execution of a mortgage decree against Nazir Ahmad for Rs. 7,558 brought about the sale of two house belonging to the judgment debtor on the 23rd of January 1947. One of these houses was purchased by Anwar Khan and Hussain Khan for Rs. 6,100 and the other by Feroz‑ud‑Din for Rs. 20,

000. We are con cerned here with the second of these houses in respect of which the sale was not confirmed by the executing Court on the ground that three‑fourths of the purchase‑money had not been deposited within time by the auction‑purchaser. That Court had refused to confirm both the sales but in appeal the sale in favour of Anwar Khan and Hussain Khan was confirmed by me while in respect of the present house I upheld the decision of the executing Court. The judgment‑debtor Nazir Ahmad has transferred his rights in these houses to Sheikh Ata Elahi. After the decision of the High Court Sheikh Ata Elahi applied to the executing Court for a re‑sale, praying at the same time, apparently under Rule 71 of Order 21, that the auction‑purchaser Feroz‑ud‑Din should pay up the deficiency of price should the house be sold for an amount less than Rs. 20,000 for which it had been sold originally. A number of objections were taken in the Lai executing Court against re‑sale but these were rejected and a re‑sale was ordered. The auction‑purchaser has appealed from this decision to the High Court. On the objection of the respondent's counsel, learned counsel for the appellant, Malik Muhammad Amin, agreed that since the auction‑purchaser was not a party to the suit within the meaning of section 47, C. P. C., the order of the executing Court was not a decree and, consequently, no appeal was competent. He, however, prayed that it may be treated as a peti tion in revision. The present case is covered completely by rules 85 and 86 of Order 21 which may be profitably reproduced: 85. "The full amount of purchase‑money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property." 86. "In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale be forfeited to the Government, and the property shall be re‑sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold." Thus the sale in execution of a decree does not require to be set aside if the purchaser fails to pay the full amount of purchase money within fifteen days. It is void and the Court is required to re‑sell the property. The only option which the Court can exercise relates to the forfeiture of the one‑fourth deposit. Rule 86 does not say that there should be an application for a re‑sale. If the execution is pending, it is the duty of the Court to hold another sale. It was contended for the appellant that since the sale was taking place for the benefit of the decree‑holder and since there is no application by the decree‑holder for a re‑sale, the application of the judgment‑debtor's representative should not be entertained. According to him it was implied in rule 86 that there should be an application for a re‑sale by the decree‑holder. He referred to certain rules of Order 21 by way of showing that execution terminates when the interest of the decree‑holder ceases, either because the decree has been satisfied or because the decree‑holder has defaulted. Thus under rule 55 where the amount decreed, etc, is paid into Court, if any property has been attached in execution of the decree, the attachment shall be deemed to be withdrawn. Under rule 57 where any property has been attached in execution of a decree, but, by reason of the decree‑holder's default, the Court is unable to proceed further with the application for execution, it shall either dismiss the application or, for any sufficient reason, adjourn the proceedings to a future date. Under rule 87 every re‑sale of immovable property, in default of payment of the purchase‑money within the period allowed for such payment, shall be made after the issue of afresh proclamation in the manner and for the period prescribed for the sale. The manner and the period are prescribed in rule

66. Under sub-rule (2) of that rule the proclamation is to be drawn up after notice to the decree‑holder and the judgment‑debtor, and it was contended that if the decree‑holder is not available, the proceedings would be incomplete. Under sub-rule (3) an application for an order for sale should be accompanied by a statement signed and verified as though it were a plaint by the person making the verification, and it was argued that this person should be the decree‑holder. Under rule 69, sub‑rule (3), every sale shall be stopped if, before the lot is knocked down, the debt and costs are tendered to the officer conducting the sale. Under rule 71 any deficiency of price which may happen on a re‑sale by reason of the purchaser's default, shall, at the instance of either the decree‑holder or the judgment‑debtor, be recoverable from the defaulting purchaser. It was argued that it is only at this stage, namely, after there has been a re‑sale, that the judgment‑debtor has a right of application but not earlier. These very provisions upon which learned counsel has relied indicate that it is only when one or the other of the conditions required by them are fulfilled that the work of the execution Court ceases. Thus, under rule 55 when the decretal amount with costs is paid into Court, the attachment ceases. In the present case, however, an amount of about Rs. 2,000 is still outstanding, and although the decree‑holder is now in the Indian Dominion, he can proceed in execution against the judgment -debtor within a limited period so that it is not only the decree- holder but also the judgment‑debtor who is interested in the sale. As regards rule 57, it requires that the application for execution should be dismissed if, by reason of the decree‑holder's default, the Court is unable to proceed further with it. But since in the present case there is no difficulty in the way of the Court to proceed with execution, no question of dismissing it will arise. Further rule 57 operates only at the stage of attachment. Now so far rule 66 goes, it is true that there should be a fresh proclamation for a re‑sale as required by sub‑rule (2), but all that is necessary under that sub‑rule is to issue a notice to the decree‑holder and that can be issued to the decree‑holder, if not in person, than though substituted service. In any case it will issue to the Custodian. Sub‑rule (2) consequently does not present any difficulty. As regards sub‑rule (3), it does not apply to a case of re‑sale. It applies only to an application for sale while in the present case rule 87 requires no application. There is now left rule 71 and the very fact that after the re‑sale the judgment‑debtor also has a right of recovering the deficiency of price shows that the judgment‑debtor is a party very much interested in the re‑sale, for, if he could not insist on a re‑sale, there would be no occasion for him to claim the deficiency of price. Thus, if a sale in execution has been set aside, it is in the interests both of the decree holder and the judgment‑debtor to claim a deficiency of price which may happen on a re‑sale, for which purpose it would appear to be necessary that they should have a right of claiming a re‑sale. The reason why there is no provision for the enforcement of such a right is that rule 86 has made it obligatory on the Court itself to re‑sell the property. The ruling upon which learned counsel for the appellant relies are not to the point. In Ashrafi Lai v. Ram Shankar (A I R 1934 Oudh 429) the executing Court had forfeited the one‑fourth deposit even after the judgment‑debtor had paid off the decretal amount, and it was held that rule 86 would not operate in such a case. In Sivasubramaniam v. Murugesa (A I R 1940 Mad. 566), there was a passing remark that "when there has to be a re‑sale as the result of the default of the auction‑purchaser the decree‑holder has to apply for a re‑sale", not because the question there was whether a resale must take place at the instance of the decree‑holder but because it was argued that since the decree‑holder had been late in making the application for a re‑sale, there should be no re‑sale. It was in relation to that argument that the learned Judges remarked that if the rule requires that there should be a re‑sale, then there has to be a re‑sale. The word "decree‑holder" was used in that context because it was the decree‑holder who had applied for a re‑sale. On the other hand, it was held in the following cases that rule 86 casts an imperative duty on the Court to re‑sell the property (1) Chitar Singh v. Lachmi Narain (A I R 1902 All. 392). In that case it was held that although an application for execution should be made and is generally made by the decree‑holder, once the initial step has been taken by him and a sale in pursuance thereof has taken place but the sale becomes abortive in consequence of the decree- holder not fulfilling his obligation as an auction‑purchaser (in that case the decree‑holder himself was the auction‑purchaser), the law casts an imperative duty on the Court to have the property re‑sold and to recover the balance from him as a defaulting auction‑purchaser. Anybody who is interested in having the property re‑sold can move the Court to do what is its duty. (2) Haji Inam Ullah v. Muhammad Idris (A I R 1943 All. 282). In this case the auction‑purchaser paid the money beyond the period of fifteen days and in the meantime the judgment‑debtor had also deposited the decretal amount. It was held that rule 86 lays a duty upon the Court to re‑sell the property if the purchase money has not been deposited within the prescribed period and that the perfor mance of this duty is quite irrespective of any application being made by any party to the proceeding As, however, the judgment debtor had deposited the decretal amount, the re‑sale was unnecessary. (3) A. R. Davar v. Jhinda Ram (I L R 19 Lah. 97). In this case the time for the deposit of 75 per cent of the purchase‑money was extended by the executing Court and the purchaser made payment within the extended time. It was held that the Court had no power to extend the time prescribed by rule 85 but that it must order a re‑sale under rule

86. Other grounds urged by the learned counsel for the appellant in the Court below were not urged before me. The petition is dismissed with costs. A. H. Petition dismissed.