1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 281 OF 2010 IN WRIT PETITION NO.4104 OF 2009 WITH CIVIL APPLICATION NO.9686 OF 2010 Bhagwandas s/o Chunilal Purhohit, Age: 46 years, Occ: Business, R/o. Shivajinagar Dalphad, Jalgaon, Tq. & Dist. Jalgaon. ...APPELLANT VERSUS Machindra s/o Rama Patil, Age: 45 years, Occ: Agri., R/o. Sanjay Nagar, Plot No.300, Survey No.48, Udana Yard Limbayat, Surat & Anr. ...RESPONDENTS ... Shri.P.N. Kutti, Advocate for appellant/applicant. .... CORAM: NARESH H. PATIL & K.K. TATED, JJ. DATE : 15TH OCTOBER, 2010. ORDER : [ PER K.K. TATED, J.) 1. Heard learned Counsel appearing for the appellant. 2 2. This Letters Patent Appeal is directed against the judgment dated 03-05-2010 passed by the learned Single Judge in Writ Petition No. 4104 of 2009. The learned Counsel appearing on behalf of the appellant submits that the impugned order passed by the learned Single Judge is patently illegal and erroneous. 3. The grievance of the appellant, who is the original defendant in Special Civil Suit No.251 of 2001, is that the trial Court failed to consider that under Order XXI Rule 84 of the Code of Civil Procedure, if the auction purchaser failed to deposit 25% of the auction price immediately then time cannot be extended and that auction sale is liable to be set aside. 4. Respondent No.1 - original plaintiff has filed Special Civil Suit No. 252 of 2001 in the District Court, Jalgaon for recovery of sum of Rs. 5,29,000/- against the appellant - original 3 defendant. The said suit was decreed by 4th Adhoc Additional District Judge, Jalgaon, by judgment and decree dated 23-12-2005. Thereafter, respondent No. 1 filed Special Darkhast No.38 of 2006 on 26-04-2006 for recovery of sum of Rs.8,27,557-60 ps. In the said Special Darkhast, the auction took place in respect of the appellant's vacant land admeasuring 71 Are from Gat No. 800. The auction sale was conducted on 02-03-2009 after observing the procedure prescribed in that behalf. Initially, one Sitaram Omkar Purohit, who participated in the bid, was declared as successful bidder, whose offer for purchase of land was for Rs.4,61,000/-. His bid was accepted on 02-03-2009 and also he was directed to deposit 25% of the amount. However, the said Sitaram failed to make the payment of the amount before the Court hours on the said date. As such, his offer was cancelled. On the same day, the property was put to re-sale and respondent No.2 whose bid was second highest, agreed to purchase the property for an amount of 4 Rs.4,61,000/-. The offer made by respondent No. 2 was accepted. However, by the time, proceedings for re-sale were complete, the Court time was over. As such, respondent No.2 was permitted by the Executing Court to deposit 25% of the amount on the next date i.e. 03-03-2009. Accordingly, respondent No. 2 deposited 25% of the amount in the Court on 03-03-2009 and thereafter, the remaining amount of 75% within the time prescribed by law. 5. On 16-03-2009, the appellant preferred an application under Order XXI Rule 101 of the Code of Civil Procedure (Exhibit-75) for setting aside the auction sale in favour of respondent No.2 on the ground that he failed to deposit the requisite amount of 25% within stipulated period i.e. on the date of auction sale. To the said application (Exhibit-75), respondent No. 2 has filed reply dated 30-03-2009 and denied those facts. He has specifically stated in his reply that by the time the auction sale in his favour was confirmed, the 5 Court hours were over and he has deposited amount of 25% on the next day i.e. on 03-03-2009 and the remaining amount of 75% within prescribed period. 6. The II Joint Civil Judge, Senior Division, Jalgaon, by his order dated 02-05-2009 dismissed the appellant's application below Exhibit-75 filed under Order XXI Rule 101 of the Code of the Civil Procedure in Special Darkhast No.38 of 2006 holding that respondent No. 2 has deposited amount, within stipulated time, in the Court, as per Order XXI Rule 84 of the Code of Civil Procedure. 7. Being aggrieved by the order dated 02-05-2009 passed by the II Joint Civil Judge, Senior Division, Jalgaon, below application Exhibit-75 in Special Darkhast No. 38 of 2006, the appellant preferred Writ Petition No.4104 of 2009. In the said Writ Petition, the learned Single Judge passed the impugned order dated 03-05-2010 holding that respondent No. 2 has deposited amount 6 of auction sale, according to Order XXI Rule 84 of the Code of Civil Procedure. 8. The only grievance made by the learned Counsel appearing on behalf of the appellant is that though the auction sale was confirmed in favour of respondent No.2 on 02-03-2009, he has deposited 25% amount of auction price in the trial Court on 03-03-2009, which is contrary to the provisions of Order XXI Rule 84 of the Code of Civil Procedure. These facts are not considered by the learned Single Judge and therefore, the Letters Patent Appeal be allowed. 9. In support of his submission, he relied on the judgment in the matter of Rao Mahmood Ahmed Khan vs. Sh. Ranbir Singh and others reported in A.I.R. 1995 Supreme Court 2195. In that case, the Apex Court held that the amount deposited by the auction purchaser by cheque is not valid tender under Rule 285-D of U.P. Zamindari Abolition and Land Reforms Rules, 1952. In view of the said Rule 7 285-D, the Apex Court held that deposit of auction purchase amount by cheque was not valid tender. The facts of the present case are quite different and hence that decision is not of any help to the appellant. In any case, the said question is not arises in the present case and therefore, the said authority is not applicable in the present facts and circumstances of the case. 10. The Rule 84 of Order XXI of the Code of Civil Procedure mandates that on every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration of twenty five percent, on the amount of his purchase money to the officer or other person conducting the sale. In the present case, the first auction purchaser could not deposit 25% amount before the court hours were over and the sale in his favour was cancelled. On the same day fresh auction was held. The next highest bidder at the first auction, agreed to purchase the property for the same amount i.e. Rs.4,61,000/- 8 which was offered by the 1st bidder and his bid was accepted. The second auction was conducted after the court hours and it was late in the evening when the proceedings of the second auction were complete and therefore the amount could not be deposited with the court. Under such circumstances the court was fully justified in permitting the 2nd respondent to deposit the amount on the next day on the reopening of the court. The word 'immediately' appearing in the Rule 84 has thus to be construed as within the reasonable time, after the auction is over. 11. The Apex Court in the matter of Rosali vs. Taico Bank & Ors. reported in A.I.R. 2007 Supreme Court 998, held that if the auction takes place after Court hours and / or after banking hours, the auction purchaser can deposit the requisite amount in the Court on the next day. Relevant Para-21 of this judgment reads thus : "21. Having regard to the fact that 9 the appellant had explained that it was not possible for his predecessor in interest to deposit the 25% of the amount immediately after such declaration, as the banks, at that point of time, were closed and furthermore having regard to the fact that presumably the Court in that view of the matter had directed the auction-purchaser to deposit the amount on the next day, we are of the opinion that it satisfies the requirement of law." 12. In the present case, admittedly the auction was confirmed in favour of respondent No.2 after Court hours on 02-03-2009 and thereafter, immediately on next working day i.e. 03-03-2009 with the permission of the Court respondent No. 2 deposited 25% of the amount. Therefore, there is no question of holding that respondent No.2 violated Order XXI Rule 84 of the Code of Civil Procedure and sale in his favour was liable to be set aside. These facts are already considered by the learned Single Judge. Thus, we do not find 10 that there is any glaring illegality in the order passed by the learned Single Judge. The Letters Patent Appeal is dismissed. 13. In the light of the dismissal of the Letters Patent Appeal, nothing survives for consideration in the Civil Application and same is also dismissed accordingly. sd/- sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] SUT/OCT10/lpa281.10