P L D﷓ 1959 (W (PLP)

SHABIR AHMAD, J.--‑The New Bank of India held a decree against Vanud Kumar and others in execution of which some property belonging to the judgment‑debtors was sold by auction on the 17th of November 1956 for a sum of Rs. 97,

000. The auction‑purchasers were Ch. Abdur Rashid and two others, who paid 25% of the sale price on the spot as soon as the bid finished. The balance was to be paid before or on the 3rd of December 1956, because Order XXI, rule 85 of the Code of Civil Procedure, which has application to sales in execution of decrees, lays down that the balance of the sale price is to be paid not later than fifteen days of the date of the sale. The judgment‑debtors had put in an application through their counsel on the 29th October 1956 for stay of proceedings of sale as the property which was intended to be sold was being treated as evacuee property by the Custodian of Evacuee Property, Punjab. The executing Court fixed 23rd of November 1956, for a reply to the application being put in by the decree‑holder and the auction purchasers. On the 30th November,1956, the auction‑purchasers made an oral request that as the property was being treated as evacuee property by the Custodian, the time for payment of the balance of purchase money should be extended. This request was made in the presence of the counsel for the judgment‑debtors and the counsel for the decree‑holder neither of whom raised any objection to the extension of time and the executing Court extended the time for depositing the balance of the purchase money till the 21st of December 1956.

2. On the 4th of December 1956, that is one day after the last date fixed by Order XXI, rule 86 of the Code of Civil Procedure for depositing the balance of the sale price, the judgment‑debtors put in an application that the order of extension of time passed by the executing Court on the 30th of November 1956, was without jurisdiction and as the balance due from the auction‑purchasers had not been paid, the sale had automatically come to an end and a re‑sale should be ordered and it should be directed that the deposit made by the auction purchasers be forfeited to Government. This application was considered by the executing Court and on the 15th of March 1957, an order was passed that as time to deposit the balance of the sale price could not have been extended, the sale conducted on the 17th of November 1956 had become ineffective and a re‑sale should take place, but no part of the money deposited by the auction‑purchasers on the 17th of November 1956 was to be forfeited. Against this order, the auction‑purchasers have presented a petition for revision. The petition came up for hearing before me in the first instance but as the questions that fell for determination were of importance and my decision would not have been open to appeal as I was hearing the case on the revisional side, I requested the Chief Justice to refer the case to a Division Bench. It is in these circumstances that the petition was heard by a Division Bench.

3. Some other relevant facts may now be detailed. As mentioned already it was on the 27th of October 1956, when execution proceedings were pending that the judgment‑debtors had put in an application that the property in suit could not be sold because it was evacuee property. On that application, the Court passed an order that report should be made by the office and the matter should be placed before the Court on the 29th of October 1956. On the 29th of October, notice of the application was given to the decree‑holder for the 9th of November. On the 16th of November 1956, the counsel for the judgment‑debtors stated in Court that he will produce an attested copy of the order of the Custodian which would show that the property intended to be sold was evacuee property and the case was adjourned to the 23rd of November 1956. 17th of November 1956 had been fixed as the date for holding the auction and as there was no stay order, the auction was conducted on that date. On the 23rd of November 1956, the counsel for the judgment debtors produced an order of the Custodian but as it did not give the details of the property, the judgment‑debtors' counsel undertook to produce an attested copy of the application on which the order had been passed as, according to him, the details of the property were contained in that application and the case was adjourned to the 30th of November 1956. On the 30th of November 1956, a copy of the application put in by the judgment debtors on the 27th of October 1956, was given to the auction purchasers' counsel and the counsel for the decree‑holder. On the 21st of December 1956, the auction‑purchasers put in their reply to the application dated the 27th of October 1956, and on the 25th of January 1957, the counsel for the judgment‑debtors withdrew his application dated the 27th of October 1956, whereupon the executing Court ordered that the balance of the sale price be deposited by the auction‑purchasers by the 30th of January 1957 and in obedience to that order the auction- purchasers put in the balance of the sale price on the 27th of January 1957.

4. Order XXI, rule 84 of the Code of Civil Procedure is to the effect that on every sale of immovable property the person declared to be the purchaser shall pay immediately after such auction a deposit of 25Y. on the amount of his purchase‑money to the person conducting the sale while rule 85 of this order lays down that the full‑purchase‑money shall be paid by the purchaser into Court before it closes on the fifteenth day from the sale of the property. The question that falls for determination is governed by Order XXI, rule 86 of the Code of Civil Procedure which reads as follows :‑ "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". There can be no manner of doubt that the legislature fixed the period for depositing the balance of the sale price for the benefit of the judgment‑debtor and the decree‑holder so that the latter should not have to wait for his money and the property of the former should not remain locked up for a long time. It appears to me, therefore, that if the judgment‑debtor and the decree‑holder do not object to the extension of time for putting in the balance of the sale price, the provisions of Order XXI, rule 86 cannot, or at least should not, be invoked ‑by the Court. I have mentioned already that on the 30th of November 1956, neither the counsel for the judgment‑debtors nor the counsel for the decree‑holder opposed the request of the auction- purchasers that in view of the fact that it was being claimed that the property was evacuee property, the time for depositing the balance of the sale price should be extended till that question had been decided because if the property were evacuee property its sale would be void and the money paid by the auction‑purchasers will remain locked up unnecessarily for a long time. Sheikh Rahim Bakhsh, Advocate, who was conducting the case on behalf of the decree‑holder in the lower Court and appeared for the decree‑holder in this Court, stated that in the lower Court he had not objected to the extension of time for putting in the balance of the sale price and did not object to it even in this Court. The position of the counsel for the judgment‑debtors was that though no objection had been raised to the request of the auction-purchasers for extension of time, there was no consent by the judgment‑debtors or their counsel and, therefore, the mandatory provisions of Order XXI, rule 86 of the Code of Civil Procedure must have full effect with the result that the property must be re‑sold. It is true that in the executing Court the counsel for the judgment‑debtors did not in so many words agree that the time for depositing the balance of the sale price, should be extended, but his silence when the request was made and even when the executing Court passed an order extending the time speaks volumes and if the omission to object is construed to amount to consent the judgment‑debtors have none but themselves to thank for it.

5. There is yet another aspect of the matter and that is that the auction‑purchasers did not comply with the provisions of Order XXI, rule 86 of the Code of Civil Procedure by deposi ting the balance of the sale‑price before or on the 3rd of December 1956, because the executing Court had passed an order that the time for deposit of the balance had been extended till such time as it was determined whether or not the property could be put to auction. It is well settled that orders of Court shall not prejudice a party which had obeyed them. This principle which is mentioned in Broom's Legal Maxims has been acted upon in a number of decided cases which need not be detailed here. It is certain that if the executing Court had not passed an order on the 30th of November 1956 that the time for depositing the balance of the sale‑price had been extended, the auction‑purchasers would have paid the balance in Court within the time prescribed by Order XXI, rule 86 of the Code of Civil Procedure as is evident from the fact that when the Court by its order dated the 21st of January 1957, directed that the deposit be made by the 30th of January 1957, the auction‑purchasers deposited the money on the 27th of January 1957.

6. The learned counsel for the respondents relied on a decision of a Division Bench reported in A. R. Davar v. Jhinda Ram (A I R 1938 Lah. 198) and urged that from that decision and from the wording of Order XXI, rule 86 of the Code of Civil Procedure, it was manifest that the executing Court could not extend the time fixed by the legislature in that provision of law. The decision relied upon by the learned counsel for the respondents has no applica tion to the present case because in that case the auction‑purchasers had applied for extension of time to pay the unpaid portion of the sale‑price after the time fixed by Order XXI, rule 86 of the Code of Civil Procedure had expired. In the case cited the provisions of Order XXI, rule 86 of the Code of Civil Procedure had already had their effect with the result that the sale had been set aside and no order of Court could change that state of affairs. I am, however, doubtful whether the decision would have been the same if the judgment‑debtor and the decree holder had appeared before the Court and agreed to the time for depositing the balance of the sale price being extended.

7. Considering the matter from all aspects I have arrived at the conclusion that though the provisions contained in Order XXI, rule 86 of the Code of Civil Procedure to the effect that unpaid balance of the sale‑rice of property sold in execution of a decree be paid within the time specified are mandatory in their terms, yet if the persons for whose benefit that provision has been made agree to the extension of time, the order of the executing Court extending the time cannot be considered to be a nullity. Though not a case under Order XX1 rule 86 of the Code of Civil Procedure, yet Ch. Muhammad Ali v. L. Ram Dass (A I R 1937 Lah. 113) supports my view because therein it was held that if after the auction sale finishes the auction‑purchaser does not deposit th of the sale price with the person conducting the auction because the judgment‑debtor agrees that the money may be put in later, the deposit could not deemed to contravene any provision of law. I am further clear in my mind that if the provisions contained in Order XXI, rule 86 of the Code of Civil Procedure are not com plied with by an auction‑purchaser because the Court had extended the time during which the balance of the sale‑price may be deposited in Court, the auction‑purchaser may deposit the money after the time fixed by Order XXI, rule 86 but within the time fixed by the executing Court and non‑compliance with the provisions of Order XXI, rule 86 in cases of that type cannot be visited with the penalty prescribed by Order XXI, rule 86 of the Code of Civil Procedure.

8. In view of what I have said above, I hold that if the auction‑purchaser can establish either that the judgment‑debtor and the decree‑holder had agreed that the balance of the sale price may be deposited at a time beyond that fixed by Order XXI, rule 86, or that the auction‑purchaser acted on the order of the B Court which extended the time fixed by Order XXI, rule 86, and the deposit was made within the period fixed by the Court the provisions contained in Order XXI, rule 86 would become inoperative. In the present case, not one but both of the above‑1 mentioned things exist and I would, therefore, accept the petition for revision, set aside the order passed by the Court below on the 15th of March 1957, but in view of the peculiar circumstances of the case would leave the parties to bear their own costs. HABIBULLAH, J.‑‑I fully agree. A. H. Petition accepted.