LexRAMCHANDRA SPG. & WVG. MILLS versus BIJLI COTTON MILLS & ORS.
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A B c D E F RAMCHANDRA SPG. & WVG. MILLS \', BIJU COTTON MILLS & ORS. December 16, 1966. (K. N. WANCHOO, R. S. BACHAWAT AND J.M. SHELAT JJ.j CMI Procedure Code (Act 5 of 1908), ss. 2(2), 47,, 0.21 R.84 a11d 0.21 R.90-Sale of properly i11 exec11tion proceedi11gs-Sa/e held by exe- c11tir.g court to be a 11ullity 011 ground 'I/lat 011e fourth of purchase price not paid i111,11ediately after a11ctio11-0rder whether appea/ab/e-0.21 R.90 whether applicable. The appellant's factory was sold by auction in execution of a decrc1> and was purchased by the respondents. The appellant challenged the sale on the allegation that one-fourth of the sale-proceeds was not paid !<> the Amin immediately after the auction and thus 0. 21 R. 84 had not been complied with. The evidence produced by the respondents showed that they had paid the required amount to the Amin after the latter had con- '1.lltc<l the Munsif on the same day. The Civil Judge disbelieving the respondents' version held the oale to be a nullity and ordered a re-sale. The High Court howeve·r decided in favom· of the respondents and rejected the appellant's legal contentions that (i) the order of the Civil Judgo being interlocutory was not appealable and (ii) that 0. 21 R. 90 was not applicable. On appeal by Special Leave to this Court. HELD : (i) The sale had been declared to be a nullity and there was thus no question of material irregularity having been committed. 0. 21 R. 91 therefore. did not apply. (304 A] (ii) The order of the Civil Judge however finally determined the question whether the sale was a nullity. After that no question was left to be decided as between the judgment-debtor and the auction purchaser. The order was therefore not an interlocutory order but a firlal order determining the rights of the parties. It fell within the definition of a decree under s. 2(2) read with s. 47 of the Code of Civil Procedure and was appealable unde.r s. 96 of the Code. (307 G; 305 Al Case law considered. Mrs. Pe/iii v. Kans/ii Gop,1/, A.LR. I 939 Lah. 210, disapproved. Manila/ Mohan/a/ Sha/I & Ors. v. Sardar Sayed Ahmed Sayed Mohamad & Anr. (1955] 1 S.C.R. 108 and Jetlia11a11d & S011.1 v. Stare of Uttar Pra- desh, A.I.R. 1961 S.C. 794, followed. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 877 of 1964. Appeal by special leave from the judgment and order dated G May 9, 1963 of the Allahabad High Court in Execution First Appeal No. 4TO of 1962. H Ravinder Narain, for the appellant. J.P. Goyal and E. C. Agarwala, for respondents Nos. I and 2. The Judgment of the Court was delivered by Shelat, J. This appeal by special leave raises the question whether an order by an executing Court setting aside an auction sale as a nullity is an appealable order. 0 302 SUPREME COURT REPORTS (1967] ~ S.C.R. In pursuance of a decree passed against the appellant (judg- ment debtor) the judgment creditor took out cx~cution proceed- ings. An auction sale of the factory belonging to the appellant was ordered by the executing court. In pursuance of that order the Amin (lhe auction officer) held an auction sale on September 10, 1962. Respondent No. I was held to be the highest bidder for Rs. 2,45,000/-. The appellant challenred th~ auction sale alleging that the Amin had not realised I/4th of the sale proceeds immediately after the said auction was closed as required by 0. 21 R. 84 of the Code of Civil Procedure. His case was that the Amin realised the said amount and deposited it in the Treasury on September 11. 1962. The appellant thereafter filed an application under 0. 21 R. 84 before the Civil Judge, Aligarh. Respondent No. 1 contested that application stating that he had tendered the said amount immediately after the auction, that the said amount being large the Amin hesitated to accept it in cash as it was too late that day lo deposit it in the Treasury. He also alleged that lhe Amin wanted to know whether he could accept a cheque instead of cash and therefore took Chhotelal, his representative, along with him to the residence of the Munsif, Hathras, to take direclions. Leaving Chhotelal in the car outside the Munsif's residence, the Amin went in to consult the Munsif if he could accept a cheque but the Munsif advised him to take cash. Thereafter the Amin returned to the car where he accepted the,.<>aid amount from Chhotelal and issued there and then a receipt therefor. The re
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