LexMANILAL MOHANLAL SHAH AND OTHERS versus SARDAR SAYED AHMED SAYED MAHAMAD AND ANOTHER
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1954 Shankar Sitaram Sontakke · and Another v. Balkrishna Sitaram · Sontakke and Otherf. Ghulam Hasan J. 1954 April 14. 108 SUPREME COURT REPORTS [1955] the motor business subsequent to Mar.ch 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relin- quished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, rule 2(3), of the Civil Procedure Code. As the suit is barred both by res judicata and Order II, rule 2(3), of the Civil Procedure Code, no further question as to the applicability of section 90 of the Indian Trusts Act can possibly arise under the circums- tances'. ·· · '·'. The result is that ·we allow the appeal and dismiss the suit with costs throughout. Appeal allowed. MANILAL MOHANLAL SHAH AND OTHERS ti. SARDAR SAYED AHMED SAYED MAHAMAD AND ANOTHER. ·[MEHR CHAND MAHAJAN C.J., VIVIAN BosE and GHULAM HASAN JJ.] Civil Procedure Code (Act V of i908), Order XX!, rules 84 and 85-Provisions requiring deposit of 25 Per cent of purchase money t'mmediately after sale· and payment of balance within 15 days of ·-~ J the sale-Whether mandatory-Non-compliance with such provisions llllii -Legal effect thereof on sale-Inherent powers-Whether can be exercised-Civil Procedure Code-Order 21, rule 72-Decree-holder not to bid for or purchase property without permission-This provi- sion direc~ory. . r Held, that the provisions' of rules 84 and 85 of Order XX! of,-4 thC CoOe of Civil Procedure requiring the deposit of 25 per cent of "·.,. the purchase · money immediately on the person being declared as a· purchaser and the payment of the balance within 15 days of the sale are mandatory and if ·these provisions are not complied with there is no sale at all. · 4 N:oll-payme"nt of the price· .on the part of the def a lilting pur- chaser 'renderS'.the Sa_le proceedings as a complete nullity . . The inhe'rent powers Of the' ·court cannot be anowed to· cir- cµmve~r, the !11-a~datory provisions of ' the · ~ode and relieve the 4 ·~ purchasets of. their obligation· -to make the deposit. - I - S.C.R. SUPREME COURT REPORTS 109 Under Order XXI, rule 72, of the Code of Civil Procedure a <lecree-holder cannot · purchase property at the Court-auction in execution of his own decree without the express permission of the Court and that when he does so with such permission, he is entitled to a set-off, but if he does so without such permission, then the court has a discretion to set aside the sale upon the application by the judgm<'.nt-debtor, or any other person whose interests are affected by the sale. As a matter of pure construction this provision is directory and not mandatory. Rai Radha Krishna and Others v. Bisheshar Sahai and Others ( 49 I.A. 312), Munshi Md. Ali Meah v. Kibria Khatun (15 Weekly Notes (Cal.) p. 350), Sm. Annapurna Dasi v. Bazley Karim Pezley Moula (A.LR. 1941 Cal. 85), Nawal Kishore and Others v. Buttu Mal and Subhan Singh (I.L.R. 57 All. 658), Haji Inam Ullah v. Mohammad Idris (A.I.R. (30) 1943 All. 282), Bhim Singh v. Sarwan Singh (I.L.R. 16 Cal. 33), Nathu Mal v. Malawar Mal and Others (A.LR. 1931 Lah. 15) and A. R. Davar v. Jhinda Ram (A.I.R. 1938 Lah. 19 8) referred to : ,.A CIVIL APPELLATE JuRrsmcnoN: Civil Appeal No. 93 of 1953. Appeal by Special Leave granted by the Supreme Court of India, by its Order dated the 5th March, 1951, from the Judgment and Decree dated the 28th January, 1949, of the High Court of Judicature at J Bombay in Appeal from Order No. 43 of 1947 arising ) out of the Order dated the 14th April, 1947, of the / - Court of the Joint First Class Sub-Judge at Ahmedabad in Darkhast No. 249 of 1940. . Appellant No. I in person for self and co-appel- lants. C. K. Daphtary, Solicitor-General for India (!. B. Dadachanji and A. C. Dave, with him) for respondent No. 1. . 1954. April 14. The Judgment of the Court was delivered by GHULAM HASAN J.-This appeal ?rought by the auction-purchasers by special leave raises the question of the validity of a sale of certain properties which took place on August 13, 1942. The respondents are the judgment-debtor and the legal representative of the deceased decree-holder. The decree-holder applied on March 30, 1940, for execution of his decree by sale of 4 lots , of property 1954 M anilal Mohan/al Shah
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