RAM KARAN GUPTA v. J.S. EXIM LTD & Ors.

of sale, but it was not considered by the Executing Court A which committed an error in confirming the sale before entertaining the said application; and that even now the appellant is willing to pay the entire amount deposited by the auction purchaser including interest and willing even to pay Rs.1 crore more so that he can save the property B where he is residing. Dismissing the appeal, the Court HELD:1.1. In the instant case, the auction purchaser had deposited 25% of the amount on 8.10.2010. When the C auction i~ for such a large amount, running in crores of rupees, nobody can expect the auction purchaser to pay the amount in cash on the fall of the hammer. In the instant case, the auction purchaser had paid Rs.2.40 . crores, may not be in cash, but by way of drafts on D

8.10.2010 and the balance amount i.e. 75 % of the bid amount was also paid on 23.10.2010, consequently, the auction purchaser had complied with the provisions of Order 21 Rules 84 and 85 CPC. In Talco Bank case, this Court extended the meaning of the term "immediately" E which occurs in Order 21, Rule 84 CPC. [Paras 13, 14] [693-D·F]

1.2. Order 21 Rule 89 CPC gives a final opportunity to the judgment debtor to save his property by setting the F sale aside before the confirmation upon the terms of satisfying the decretal debt and of paying compensation to the auction purchaser. On setting aside the sale under Order 21 Rule 89 CPC the property continues to be the property of the judgment debtor. Order 21 Rule 89 CPC is intended to (i) to save the judgment debtor from the G threatened deprivation of his property, (ii) to satisfy the claim of the decree holder an~ (iii) to compensate the auction purchaser. Rule 89 of Order 21 CPC also applies to a sale in execution of a decree for payment of money and an order of sale of property under the Partition Act, H 686 SUPREME COURT REPORTS {2012] 12 S.C.R. A 1893 is a deemed decree under the Code and, therefore, an application for setting aside sale in execution of such · decree is maintainable. It also applles to a decree passed in terms of an award in a Partition suit, so also to a sale in execution of mortgage decree. Order 21 Rule 92 CPC B provides for confirmation of sale, as also setting aside the sale. [Para 15] [695-A·D] C D

1.3. In the instant case, there was no reference at all to the provisions of Order 21 Rule 89 in the application filed by the appellant on 1.12.2010, be that it may, even then the appellant had not complied with the mandatory requirements of depositing the amount. Clause (a) of Sub-rule (1) of Rule 89 of Order 21 requires the applicant to deposit in Court 5 per cent of the purchase money for payment to the auction purchaser. Deposit of the requisite amount in the Court is a condition precedent or a sine qua non to an application for setting aside the execution of sale and such a amount must be paid within a period specified in the rule and if the deposit is made after the time limit, the application must be dismissed. E The deposit made under Rule 89 of Order 21 CPC should be unconditional and unquatified and the decree holder or the auction purchaser should be able to get the amount at once. The rule is in the nature of a concession shown to the judgment debtor, so he has to strictly F comply with the requirements thereof and a sale will not be set aside unless the entire amount spectfied In rub rule (1) is deposited within 60 days from the date of the sale and, if it is beyond 60 days, the Court cannot allow the application. The appellant-judgment debtor did not G pay the amount within the stipulated time and he only made an application on 1.12.2010 without depositing the amount and hence the Court cannot entertain such an application and bound to confirm the sale which, in this case, the Court did on 23.10.2010. There Is no error in the H ""; . ~ _, RAM KARAN GUPTA v. J.S. EXIM LTD. 687 judgment and orders of the Executing Court as well as A · the High Court and the belated offer made .by the appellant for depositing the amount now cannot be entertained and the same is rejected. [Paras 19, 20 and 21] [699-E-H; 700-A-D]