LexGOPAL KRISHNA DAS versus SAILENDRA NATH BISWAS & ANR.
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726 ,; GOPAL KRISHNA DAS ll. SAILENDRA NAill BISWAS & ANR. February 26, 1975 JY. V. CHANDR.ACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.] Cil'il Procedu~e Code-Order 21 Rule 71-;~eaning of deficien_cy of price accrued by reason of the auction pur~hasers default-Wf:ether defic1en"'t ~l!o~ld 'lie attributable to the default of auct1on purchaser--Sectlon 12(2) of L1munr,on "Act 1963-Time requisite for obtaining certified copy-Whether means time 'properly required or includes time spent neRli~:enrly. . A B The appellant was one of the joint owners of the premises in question. In ,execution of a money decree obtained agn.inst the appellant his share in the property was put to sale and was purchased by the father of the first respondent · C -~ jor Rs. 77,000. 1be purchaser deposi~cd 25 per ~ent of the purchase price. T he property was put to sale once agam and was m fact knocked down for a ~um of Rs. 700/ ~ in favou.r of the father of respondent No. 1. The a~pellant :.Uade an application under Order XXI Rule 71 of C.P.C. for recovenng the : deficiency in the price realised in the second sale from the purchase. Order XXI Rule 71 C.P.C. reads as under :- I J I I l -1 .. Any deficiency of price which may happen on a re-sale by reason of the pur~haser's defJult and nit expenses attending such re-sale, shall be certified to the Court by the Officer or other person holding the 5alc, and shall nt the instance of either the decree bolder or the judFment Jcbtor, be recoverable from the defaulting purcha~er under the provisions relating to the execution of a decree for the payment of money ... I D . l t ·The proclamation of sale for the first sale stated that the premises were free from encumbrances. Proclamation for the seconJ sale, however, states that the ,entire grou11d floor excepting two road-side shops, was let out. .. The !..earned Single Judge allowed the nppli::ation of the nppeUnnt and · . direc1ed t~1e pur<;hao.;er ta pay the dcfitit:nc:y with interest. The Division Bench of the H•gh O.mrt 011lowcd the appc:al unJ dismissed applicotion filed by the appelJunt. unde.r Ord~r .xxr. Rut~ 71 !or recovering from the auction purcha~r t~ defi.cu~ncy tn the satd pnce. On llPpeal by certificate undc:r Article t33ll ~(a) . & (c) tt wa$ contend!!d before this Court by th~ appellant that he was enutled . to recover from the first r~sponJent the deficiency in the price reali:;,cJ in th'" S'!cond "'le under Order XXl Rule 71. The resrondent contended that the . appellant can ro;over t!le dcfficiency in the second sale only if it can be attributed to ddault of the auctJon purchaser. HELD: F ~e application of Order XXI rule 71 i~ limited to c:1scs in which the ddlctency of pr1ce ha., <>ccl'rrcd by rt:lwn of the auction purchaser•s default . .Property o~ce put to hale in ex~ution procecJings m:ty hav~: to be resold tor rea\On~ whtch .m>tY or may not \le connected with the ddault of the auction G purc.ha~r. It ~ not c~OO!!h that the rt,alc i~ occ:t'\ioneJ. by the default of the . fi~Cllon purc~a~r. .Jt l'i fur!her n~ces,ary thnt the re ... ale must result in a d~fi· 'Jency of pr~ee wh~h defictcncy 1s uttributahle to th-e udault of the aucuon rurch:tlo(t. fn the fil"'tt rr!lclamation of ll>~lo there wus no mention of the.le:lSef In the ~ond proclamation the l~a~e ha" been m--ntioned. In the ctty 0 C~lcl!J.ta w~ere premi'l~5 nre . ..,ituated, the We'lt Dcng~l Premises Tenancy Act, 19~6 wa~ ID f?r~~ nt the t1me of the s~cond sale. Under that Act t~n:~nts enJ?Yed t~e pnv1lege5 of stanJard r~nt nnd . immunity from evi:tion. 1ht:. rdt:r~oce m the se1.~ond sat~ proclamation to n lca<>e and to the fact that su\:1- · Jl $l~ntt~l part _of the. property was in on.'\lpntion of the tenant wa.1 bound to nfle~~ the markt!a.bllity of the property. Order XXI rule 71 h int~ndl!~l I!J v~O\ ldc:r ID cxpcdtiJOUS remedy to the juuj!ment debtor or the decree hoiJC'I' W~ ~)~~Dl~d • detriment due to the default of the auction pur~hascr. [n ~>c. ' G, K. DAS v; S, N. BlSWAS (Clumdrachud, J.) 727 ·A (2) The apreal before the Division Bench was not time barred. The time requisite for obtaining certified copy means time properly required and an appel- lant cannot in computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently. In the present case settlement of the draft decree was adjourned from time to time by an officer of the court o
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