IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.969 OF 2009 Date:26-08-2011 Between:- Mummadi Anasuya and another ..Appellants And Pannala Malla Reddy and another .. Respondents THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.969 OF 2009 JUDGMENT: 1. This Civil Miscellaneous Appeal is filed under Order XLIII and Rule 1(3) of C.P.C against the order dated 24.6.2009 passed by the I Additional Senior Civil Judge, Ranga Reddy District in E.A.No.76 of 2009 in E.P.No.27 of 2008 in O.S.No.291 of 2005 whereunder and whereby the petition filed by the appellants under Order XXI Rule 90 C.P.C with a prayer to set aside the sale made in Court Auction of Agricultural land admeasuring Ac.1.36 gts., in Sy.Nos.15 to 20 of Tadlakalwa Revenue village, Ibrahimpatnam Mandalo, Rangareddy District, was dismissed with costs. 2. Heard the counsel appearing for the respective parties. 3. The petitioner contends that she is the petitioner No.1 and JDr No.1. The petitioners are bound by the decree passed in O.S.No.291 of 2005, due an amount of Rs.6,20,268/-. She made several efforts to comply with the E.P., claim with in the period provided by the Court, but due to over expectations, the required money could not be arranged in time. As a result, the trial court conducted auction of Ac.1.36 gts., in Sy.Nos.15 to 20 of Tadlakalwa Revenue Village, Ibrahimpatnam Mandal, Ranga Reddy District on 23.1.2009 in open auction. Sale was knocked down for Rs.6,30,000/-. The purchaser immediately paid 1/4th amount as per terms dated 3.11.2008. The trial court did not follow the conditions laid down under Order XXI Rule 85 C.P.C. The purchaser ought to have paid the remaining ¾ amount on or before 11.2.2009, but he failed to do so. Hence, he become defaulter. Therefore, the sale is to be set aside. 4. The purchaser/respondent No.2 and DHr/respondent No.1 have filed similar counters and contended that there is no irregularity committed by the executing court in conducting auction. The petition averments are malafide and hence the sale cannot be set aside. With an intention to cause hardship to purchaser, the present petition is filed and therefore, the petition is liable to be dismissed. 5. The Decree Holder filed the counter contending that the petitioners herein filed a petition for enlargement of time for 15 days to pay the E.P., amount. This court had allowed the petition and granted time. Thereafter, the petitioners and their counsel never appeared before the Court. They did not pay any amount to the Decree Holder. Thereafter the property was sold by following the due procedure. 6. Basing on the above pleadings, the following point has been framed: 1. Whether the sale is to be set aside on the ground of material irregularity? 7. The contention of the learned counsel for the appellants (J.Drs) is that the auction purchaser has not deposited 25% of the decretal amount on the date of auction and remaining 75% of the decretal amount has to be deposited within 15 days thereafter. Therefore, the sale is completely in violation of the rules as the auction purchaser has not complied with the procedure as contemplated under law. 8. The learned counsel for the respondent No.1/decree holder, on the other hand, has contended that the auction purchaser deposited the ¾ amount within 15 days from the date of sale and that only delay of 3 days and it was condoned by executing court. Hence, he prays to dismiss the appeal. 9. The learned counsel for the auction purchaser/respondent No.2 contended that after 15 days of conducting sale, the auction purchaser came to the court and filed an application seeking extension of time for depositing the remaining 3/4th of bid amount and within one week thereafter, the auction purchaser has deposited the said amount. Therefore, there is no violation of any provision. Hence, he prays to dismiss the appeal. 10. The factual matrix is not in dispute. The property was brought under sale and the court auctioned the property on 23.1.2009. There is no dispute that the auction purchaser has to pay 3/4th of the bid amount on or before 7.2.2009. Admittedly the 3/4th of the bid amount has not been deposited within the prescribed period under law. Order XXI Rule 84 reads as follows: “84. Deposit by purchaser and re-sale on default. (1) On every sale of immoveable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent on the amount of his purchase- money to the officer or other person conducting, the sale, and in default of such deposit, the property shall forthwith be re-sold. (2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under Rule 72, the Court may dispense with the requirements of this rule.” 11. A perusal of the above provision makes it clear that 25% of the purchase money be paid immediately to the officer. 12. Order XXI Rule 85 C.P.C reads as follows: “85. Time for payment in full of purchase-money.- The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property: Provided, that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under Rule 72.” 13. This provision provides for payment of full amount (i.e., balance amount of seventy five percent after deducting twenty five percent which has been paid under rule 84) by purchaser of property with in 15 days from the date of sale. On this aspect, the learned counsel for the appellants placed reliance on the decision reported in Manilal Mohanlal Shah Vs. Sardar Sayed Ahmed Sayed Mahmad[1] wherein it was held thus: “Non payment of the price of the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case thee was no sale and the purchasers acquired no rights at all.” 14. Therefore, from the above decision, it is clear that if the payment is not made within the time prescribed, the sale proceedings are said to be a complete nullity. 15. In a decision of this Court reported in Ambati Raghavalu vs. Mova Venkamma and others[2] it was held thus: “Thus, this is the first step in the process of making the deposit. If the Court does not issue the challan in spite of the application for it by the party before the expiry of the prescribed period, he is not in a position to fulfill the obligations cast by Rule 85. So, the non-observance of the terms of Rule 85 is not due to any default or negligence on his part but due to causes beyond his control. It is inaction or the erroneous act of the Court that it is responsible for the inability of the party to deposit the money into Court. It is in such a situation that the maxium actus curiae neminem grayabit i.e., an act of the Court prejudices no man comes into play. When a litigant is unable to comply with the requirements of a statue not because of his own fault but on account of the action or inaction of a Court, the principle underlying the maximum is attracted. 16. So, from the above decision, Order XXI Rule 85 C.P.C, is mandatory in nature. Admittedly, there is non compliance of Order XXI Rule 85 C.P.C. Since the auction purchaser has not deposited the remaining 75% of the dcretal amount before the court closes on the 15th day of the sale proceedings, sale shall be held to be nullity and is not valid in the eye of law. 17. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order and consequently the application filed by the appellants/JDrs is allowed. No order as to costs. _______________ K.C. BHANU, J 26.08.2011, Gk. THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.969 OF 2009 Date:26-08-2011 Gk. [1] 1954-AIR (SC) 349 [2] AIR 1962 AP 334 (V 49, C 81)(1)