Law: Civil Procedure Code (V of 1908)

Section: O.XXI,rr.85,86,66(2)

Civil Procedure Code (V of 1908), O. XXI, rr. 85, 86---­Re-sale-Court's duty to order-Application not necessary­---Fresh proclamation. The sale in execution of a decree does not require to be set aside if the purchaser fails to pay the full amount of pur­chase-money within fifteen days. It is void and the Court is required to re-sell the property. The only option which the Court can exercise relates to the forfeiture of the one-fourth deposit. Rule 86 does not say that there should be an application for a re-sale. If the execution is pending, it is the duty of the Court to hold another sale. There should, however, be a fresh proclamation for sale as required by sub-rule (2) of rule 66. JUDGMENT M. R. KAYANI, J.---Chaman Lai and Roshan Lai in execution of a mortgage decree against Nazir Ahmad for Rs. 7,558 brought about the sale of two house belonging to the judgment­debtor on the 23rd of January 1947. One of these houses was purchased by Anwar Khan and Hussain Khan for Rs. 6,100 and the other by Feroz-ud-Din for Rs. 20,000. We are con­cerned here with the second of these houses in respect of which the sale was not confirmed by the executing Court on the ground that three-fourths of the purchase-money had not been deposited within time by the auction-purchaser. That Court had refused to confirm both the sales but in appeal the sale in favour of Anwar Khan and Hussain Khan was confirmed by me while in respect of the present house I upheld the decision of the executing Court. The judgment-debtor Nazir Ahmad has transferred his rights in these houses to Sheikh Ata Elahi. After the decision of the High Court Sheikh Ata Elahi applied to the executing Court for a re-sale, praying at the same time, apparently under Rule 71 of Order 21, that the auction-purchaser Feroz-ud-Din should pay up the deficiency of price should the house be sold for an amount less than Rs. 20,000 for which it had been sold originally. A number of objections were taken in the Lai executing Court against re-sale but these were rejected and a re-sale was ordered. The auction-purchaser has appealed from this decision to the High Court. On the objection of the respondent's counsel, learned counsel…

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